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To Gain the Whole World and Lose His Own
Soul: Nineteenth-Century American Dueling as
Public Law and Private Code
Alison LaCroix
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Alison LaCroix, "To Gain the Whole World and Lose His Own Soul: Nineteenth-Century American Dueling as Public Law and
Private Code," 33 Hofstra Law Review 501 (2004).
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TO GAIN THE WHOLE WORLD AND LOSE HIS
OWN SOUL: NINETEENTH-CENTURY AMERICAN
DUELING AS PUBLIC LAW AND PRIVATE CODE
Alison L. LaCroix*
[A]nd now, having grasped his new-purchasedSword in his Hand, he
was going to issue forth, when the Thought of what he was about to
undertake laid suddenly hold of him, and he began to reflect that in a
few Minutes he might possibly deprive a human Being of Life, or might
lose his own. 'Very well,' said he, 'and in what Cause do I venture my
Life? Why, in that of my Honour. And who is this human Being? A
Rascal who hath injuredand insulted me without Provocation. But is
not Revenge forbidden by Heaven?-Yes, but it is enjoined by the
World. Well, but shall I obey the World in opposition to the express
Commands of Heaven? Shall I incur the divine Displeasure rather
than be called-Ha-Coward-Scoundrel?-I'l1think no more, I am
resolved andmust fight him.'
Two hundred years ago last July, the most famous duel in the
history of the United States left dead one of the young Republic's most
renowned statesmen and transformed another into a social pariah and,
for a time, a fugitive from justice. When Aaron Burr shot Alexander
Hamilton on the cliffs of New Jersey in an affair of honor, it was the
culmination of decades of political and personal animosity between the
two leaders. It was also a particularly nineteenth-century moment that
contained elements of public and private, honor and virtue, and legality
and illegality, all of which existed in uneasy tension at a transitional
moment in the history of American law.
For the modem observer, the practice of dueling demolishes any
happy notion that people are fundamentally the same regardless of the
* Doctoral candidate, Department of History, Harvard University. B.A., Yale University;
J.D., Yale Law School; A.M., Harvard University. The author thanks Robert W. Gordon for his
comments on an earlier draft of this Article. The author also thanks William Birdthistle.
1. HENRY FIELDING, TOM JONEs 387 (Fredson Bowers ed., Modem Library 1994) (1749).
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particular chronological moment in which they inhabit the world. The
notion of two men exacting payment for insult by standing in an open
field and shooting at each other appears to us at best quaint, at worst
barbaric, but always alien. The notion of a society countenancing such
behavior slams the door of difference and its companion, inscrutability,
between us and our predecessors. We know dueling through its
occasional performances, notably the Burr-Hamilton encounter, but the
epic overtones that Weehawken meeting has assumed since it occurred
in 1804, the prominence of its principal parties, and the gravity of its
result all work to remove it from the realm of the understandable. An
impossibly formal ritual of consensual injury, the duel presents itself to
us as an airtight thing rather than as a series of actions directed and
executed by human beings. We can imagine a scene called a duel, but
we have no idea how or why one would be present at such a scene in the
first place.
Yet people 2 dueled-in the United States, as recently as the latter
decades of the nineteenth century, although the precise date of the last
American duel has been lost to history. Duels were referred to as
"meetings," "rencontres," "encounters," and "affairs of honor"-the last
the most euphemistic but in many ways the most accurate term, for only
the participants' insistence that their honor required them to take the
field allowed them to comprehend the duel as distinct from the common
brawl or gunfight. Conforming his behavior to a written code with its
carefully defined language of challenges, seconds, and satisfaction, the
duelist demonstrated to himself and to his community that he was a man
of honor, a man whose reputation and integrity were so substantial that
to affront him was knowingly to set in motion an inexorable chain of
delicate negotiations, an exchange of carefully worded letters and
2. Or, more accurately, men dueled. Female dueling was not unknown in the nineteenth
century; however, it is difficult to ascertain how much of the discussion of this phenomenon
stemmed from its titillating novelty (and open defiance of gender norms) rather than its frequency.
Contemporary treatments of dueling by both European and American authors often included
discussions of notable duels between women. See, e.g., LORENZO SABINE, NOTES ON DUELS AND
DUELLING 192 (Boston, Crosby, Nichols, and Co. 1855) (recounting the 1853 duel in Buffalo, New
York between Jane Hall and Catherine Hurley); 2 ANDREW STEINMETZ, THE ROMANCE OF
DUELLING IN ALL TIMES AND COUNTRIES 58, 125 (London, Chapman and Hall 1868) (sections
titled "Lady Duellists"); BEN C. TRUMAN, THE FIELD OF HONOR 147 (New York, Fords, Howard, &
Hulbert 1884) (chapter titled "Clergymen and Women"). Additionally, at least one popular novelby a female author-featured a duel by a major female character. See MARIA EDGEWORTH,
BELINDA 48-54 (Eil~an Ni Chuilleandin ed., Everyman 1993) (1801) ("'I had never fired a pistol in
my life; and I was a little inclined to cowardice; but Harriet offered to bet any wager upon the
steadiness of my hand, and assured me that I should charm all beholders in male attire."'). This
Article will focus on the conventional duel between men.
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NINETEENTH-CENTURYAMERICAN DUELING
503
perhaps even of pistol shots. To duel was to enact one's gentlemanliness
by demanding an opportunity to "call out" a fellow gentleman whose
name-calling or accusation of lying had attacked the core of one's being.
To duel was to demand nonlegal (even illegal) retribution for a particular
type of injury to one's person.
But the duel also carried with it profound public meaning, in spite
of many duelists' beliefs that they were simply settling private disputes
like gentlemen. True, to duel was to construct a binary dispute between
two individuals, each of whom asserted total self-contained
accountability and autonomy by accepting the consequences of, on one
side, the insult, and on the other, the challenge. Ultimately, each man
stood alone facing the other across a prescribed distance, the seconds
and other attendants hovering uselessly outside the boundary of this
binary arrangement. But consider the setting in which this ostensibly
private dispute between gentlemen unfolded: the presence of the seconds
and the doctors, the meeting at an infamous dueling ground just outside
city limits or across the river, the after-the-fact statements by the parties
in the newspapers that all the requirements of rule and form had been
followed. Seen in this light, to duel was to perform the specific role of
gentleman by asserting the right to vindicate personal honor in the realm
of public notice.
Thus, a subtle alchemy was required for dueling to be viable as an
institution: a translation from private dispute into public performance
that needed no translation of the central term "honor," for individual
honor was wholly determined by its performance in the public arena.3
And luckily for the duel, this was the case throughout the United States
for much of the first half of nineteenth century, before the growing
dissonance between North and South led northerners to begin to reject
the duel as a relic of undemocratic, unchristian, and uncommercial
3. A great many scholars have addressed the connection between honor and dueling,
especially with respect to dueling in the South and among politicians both North and South. Most
notable is the work of Joanne Freeman, who argues that a "grammar of political combat" governed
disputes among statesmen in the early Republic. JOANNE B. FREEMAN, AFFAIRS OF HONOR:
NATIONAL POLITICS INTHE NEW REPUBLIC, xxii (2001); see also EDWARD L. AYERS, VENGEANCE
AND JUSTICE: CRIME AND PUNISHMENT IN THE 19TH-CENTURY AMERICAN SOUTH 16 (1984);
DICKSON D. BRUCE, JR., VIOLENCE AND CULTURE IN THE ANTEBELLUM SOUTH 28-29 (1979); V.G.
KIERNAN, THE DUEL IN EUROPEAN HISTORY: HONOUR AND THE REIGN OF ARISTOCRACY 15-17
(1988); BERTRAM WYATT-BROWN, SOUTHERN HONOR: ETHICS AND BEHAVIOR IN THE OLD SOUTH
352-61 (1982); Elliott J. Gom, "Gouge and Bite, Pull Hair and Scratch": The Social Significance
of Fighting in the Southern Backcountry, 90 AM. HIST. REV. 18, 39-43 (1985); Kenneth S.
Greenberg, The Nose, the Lie, and the Duel in the Antebellum South, 95 AM. HIST. REV. 57, 58
(1990); Steven M. Stowe, The "Touchiness" of the Gentleman Planter: The Sense of Esteem and
Continuity in the Ante-Bellum South, PSYCHOHISTORY REV., Winter 1979, at 6, 7-8, 11-14.
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barbarism. Consequently, the early nineteenth-century duelist could
credibly tell himself that he was simply acting on his own internal moral
code and believe it, even as he acted out that internal code in a highly
public arena. As long as he believed in the identity between his own
code and the "code duello," the gentleman saw no incongruity in
monopolizing the public realm for the resolution of his private dispute.
When this crucial identity began to break apart under the
impossible weight of justifying the code of honor, however, the duel
came to have less to do with an acting-out of the essential identity of the
gentleman and more to do with conformity to a particular set of social
mords. This change in nature resulted largely from a change in
contemporary perception. Nineteenth-century Americans (both North
and South, albeit for different reasons) came to view the duel as entirely
artificial, a script of manners rather than an organic system of dispute
resolution. For the "unwilling duelist" (a popular type after the BurrHamilton duel established the vision of Hamilton as a martyr 4), the
desire to conform to the socially enforced code of elite honor-and the
consequent necessity of calibrating one's own honor according to the
community standard--conflicted with suspicions of a disjunction
between personal morality and the requirements of the traditional view
of gentlemanliness.
By mid-century, prominent northern ministers had seized on the
conflict between popular pressures and individual morality in a
deliberate attempt to redefine the gentleman as constituted by an inner
core of virtue rather than by outward representations of mettle. This
effort worked a fundamental shift, for it inverted the traditional notion of
honor as publicly proved and publicly rewarded in favor of a vision of
honor as an internal moral force that displayed itself in, but was not
constituted by, the public realm. On this view, honor-recharacterized as
moral courage-contributed to the public realm by infusing it with
4. In keeping with the immediately mythic status of the Burr-Hamilton duel, Hamilton's
written statement of his reasons for dueling Burr-and his storied personal opposition to duelingquickly became part of the public discourse on dueling:
To those, who with me abhorring the practice of Duelling may think that I ought on no
account to have added to the number of bad examples, I answer that my relative
situation, as well in public as private appeals, inforcing all the considerations which
constitute what men of the world denominate honor, impressed on me (as I thought) a
peculiar necessity not to decline the call. The ability to be in future useful, whether in
resisting mischief or effecting good, in those crises of our public affairs, which seem
likely to happen, would probably be inseparable from a conformity with public prejudice
in this particular.
Alexander Hamilton, Alexander Hamilton's Remarks on his Impending Duel with Aaron Burr, in
INTERVIEW INWEEHAWKEN 99-100, 102 (Harold C. Syrett & Jean G. Cooke eds., 1960).
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Christian virtue. A true gentleman need only possess this solid center
and carry it with him into all his endeavors; he need not-indeed, could
not-look to public approbation to provide it for him. Combining the
Protestant belief in the primacy of inner moral qualities, the democratic
privileging of genuine character above mannered affect, and the
Victorian fascination with the private sphere, opponents of dueling
sought to recast the practice as the antithesis of gentlemanly honor in its
new incarnation: individual moral fiber.
The drive to eliminate the duel as a socially acceptable mode of
dispute resolution in the North coincided with a related but contrary shift
in the South as the brewing sectional crisis transformed regional
difference into regional antagonism. Dueling occurred with greater
frequency and endured longer in the South than in the North,5 in large
part because many southerners embraced the duel and the code as
symbols of their own distinctiveness. The northern rejection of dueling
began from the premise that the code of honor was an antique relic of a
pre-modern, pre-commercial, status-based society that subordinated
personal morality to communal norms and character to reputation.6 The
southern fascination with dueling assumed the same premises but
reached the opposite conclusion. Already differentiated by their devotion
to chattel slavery, southerners desperate to forge a regional identity
conceived of themselves as fundamentally different from northerners
and willingly embraced the stereotypes applied to them by northern
critics. 7 Sustained by their belief that to duel was to demonstrate not just
5. E.g., ROBERT BALDICK, THE DUEL: A HISTORY OF DUELLING 117 (1970); BRUCE, supra
note 3, at 4-5; RICHARD BUEL JR., SECURING THE REVOLUTION: IDEOLOGY IN AMERICAN POLITICS,
1789-1815, at 80 (1972); KIERNAN, supra note 3, at 306, 309; WILLIAM OLIVER STEVENS, PISTOLS
AT TEN PACES: THE STORY OF THE CODE OF HONOR IN AMERICA 245 (1940); Lea Vandervelde, The
Legal Ways of Seduction, 48 STAN. L. REV. 817, 836 (1996); James R. Webb, Pistolsfor Two...
Coffee for One, AM. HERITAGE, Feb. 1975, at 66. Nineteenth-century commentators also remarked
on the North-South split. See, e.g., WILLIAM B. SPRAGUE, A SERMON ADDRESSED TO THE SECOND
PRESBYTERIAN CONGREGATION IN ALBANY MARCH, 4, 1838; THE SABBATH AFTER INTELLIGENCE
WAS RECEIVED THAT THE HON. JONATHAN CILLEY, MEMBER OF CONGRESS FROM MAINE, HAD
BEEN MURDERED IN A DUEL WITH THE HON. WILLIAM J. GRAVES MEMBER FROM KENTUCKY, 14
(Albany, Joel Munsell 1838); SABINE, supra note 2, at 41-42.
6. For a discussion of the character-versus-reputation dichotomy, see Van Vechten Veeder,
The History and Theory of the Law of Defamation, 4 COLUM. L. REV. 33 (1904). The opposition
between internal (character) and external (reputation) with respect to North and South has also been
described as one between "dignity" and honor, AYERS, supra note 3, at 19; "respectability" and
honor, WYATT-BROWN, supra note 3, at 19-20; and "underlying reality" and "projections,"
Greenberg, supra note 3, at 62.
7.
WILLIAM
R. TAYLOR, CAVALIER AND YANKEE: THE OLD SOUTH AND AMERICAN
NATIONAL CHARACTER 335 (1979) ("The problem for the self-conscious South finally lay in the
need which it felt to isolate-to quarantine-itself from the contaminating influence of the Yankee
North, which it both feared and envied-and which, finally, was so much a part of itself").
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honor but specifically southern honor, gentlemen in the South continued
to duel long after their northern contemporaries had ceased because they
viewed the practice as a badge of regional distinction.
Yet the story of dueling in America cannot be explained by
reference to simple geographic and cultural differences and thereby
pigeonholed as yet another southern institution so entrenched as to
require a civil war to force it into line with a more enlightened northern
view of democracy. The story is much bigger as well as much smaller,
for it concerns the shift in relationship between individual and society
that accompanies the transition to what we think of as a modern
commercial worldview, as well as the decline of an archaic ritual that
attracted a disproportionate amount of national attention given how tiny
a sliver of the population ever actually practiced it. Consequently, the
North-South dueling dichotomy must be examined within the context of
what contemporaries understood as a confrontation between a social
system aspiring toward the modern and the commercial and one aspiring
toward the classical and the honor-based.
This Article begins by examining the history of dueling in the
United States prior to the mid-nineteenth century, when the differences
between North and South became more pronounced. As the BurrHamilton duel illustrates, affairs of honor were common in the early
republican period, many of them outgrowths of highly personal political
affrays. The political duel continued to dominate the popular conception
of dueling into the 1830s, with many of the most sensational meetings
taking place between men from both North and South (and even West)
around Washington, D.C., and culminating in the 1838 duel between
Congressman Jonathan Cilley and Congressman William Graves.
Part II describes the Cilley-Graves duel and subsequent events.
Dueling changed over time; consequently, this Article aims to provide
an antidote to static views of it. I argue that by 1838, northerners began
to object to dueling, in large part as a result of a growing belief that the
code duello did not comport with private, Christian morality. Political
disputes involving sectional issues were, however, a notable exception to
this disfavor. Meanwhile, southerners continued to cling to their
traditional view of public and private as a single, coherent arena for
human activity with a single, highly public code of behavior. After the
Cilley-Graves duel and the tremendous public outcry it spawned, the
gulf between North and South widened-aided by the growing urgency
of the same sectional tension that had sparked the congressmen's fatal
duel in the first place. By mid-century, southemers embraced the code of
honor as a uniquely and self-consciously southern institution.
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Paradoxically, this conception of the code of honor as a societal
imperative requiring performance on a grand scale did not comport with
southerners' insistence that the code was a "natural" form of resolving
disputes. Rather, the duel became a conscious statement of southern
difference even more artificial than the manners on which that difference
was supposedly based.
Part III examines dueling's double relationship to law as both (1) a
subject of regulation, and (2) a precursor to such causes of action as libel
and slander. My analysis of nineteenth-century state cases suggests that
the same ambivalence toward the relationship between public and
private that accompanied the demise of dueling in the North continued to
endure in the legal mode of obtaining satisfaction that replaced the extralegal duel. The law claimed to protect only individuals' property in their
reputations (i.e., their projections of themselves into the world around
them), not in their characters (i.e., their personal moral cores). In so
doing, it abandoned the arguments of dueling's critics, who had attacked
the duel's unhealthy privileging of external over internal values, in favor
of a new privileging of the external. The insults deemed worthy of
settlement in the public domain were confined to those affecting
individuals' specifically civic, market-based personas; merely personal
insults had no place in the legal system of dispute resolution. In this
way, the law replaced the code of honor's conception of individual life
as entirely public-and personal insults as therefore worthy of public
settlement-with a new idea that public redress ought to be limited to
certain types of insult affecting certain special realms of human activity.
Unsurprisingly, the defamation lawsuit appears to have been received
much more favorably in the North than in the South as a proxy for
satisfaction on the dueling ground. No longer constitutive of the
individual's entire identity and unable to adapt to the modem world, the
code of honor ceded the field to the narrower, legal modes of
satisfaction.
I.
EARLY HISTORY: DUELING IN AMERICA BEFORE
A.
1838
How Did It Begin?
Temporal remoteness did not create modem uncertainty about how
dueling arrived in the United States, for the origins of dueling in both
Europe and America are now and have always been murky. Although
some nineteenth-century commentators attempted to trace the duel's
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lineage to the medieval system of trial by battle, 8 twentieth-century
scholars have settled on a more recent story of a dueling renaissance
beginning in Italy and France and spreading throughout Europe-and
ultimately to the United States-in the sixteenth and seventeenth
centuries. 9 Critics and apologists alike strove to connect the modem duel
to age-old traditions of adjudic ative combat, either to illustrate the
barbarism that men in all eras had proven capable of perpetrating on
each other or to lend the patina and credibility of antiquity to the
increasingly deadly pistol duel.' 0
Fittingly, the first recorded duel on what was to become American
soil was fought at Plymouth, Massachusetts, on June 18, 1621." The
disagreement, between servants Edward Doty and Edward Leister, ended
bloodlessly but with the principals being tied together at the necks and
heels in full view of the settlement's entire population before being
released by their employer. In the years after the Doty-Leister affair, the
colonies witnessed a steady stream of duels, many of which can been
attributed to the British occupiers' desire to emulate the ways of
fashionable European society. 12 Particularly in the North, the duel was a
8. Often credited with originating the duel was one Gundebald, king of the Burgundians,
who was said to have authorized a judicial duel in 501 A.D. in the form of a wager of battle
"founded on the presumption that a brave man did not'deserve to suffer, and that a coward did not
deserve to live." SABINE, supra note 2, at 1; see also M.A. DE WOLFE HOWE, THE WILLING
HOMICIDE
UNFIT TO BE A LEGISLATOR...,
at 12 (Boston, Torrey & Blair
1838) (citing
Gundebald's judicial combat as the earliest example in a tradition continued by Francis I of France
and Charles V of Spain, who themselves came close to dueling in 1528).
9. See KIERNAN, supra note 3, at 6; STEVENS, supra note 5, at 2. This is not to suggest that
earlier commentators ignored the Continental cultural crossover that produced the duel, however:
[T]ruth, honor, freedome and curtesie being as incidents to perfit chivalry upon the lye
given, fame impeached, body wronged, or curtesie taxed, a custom hath bin among the
French, English, Burguignons, Italians, Almans and the Northern people (which as
Ptolemy notes are always inclined to liberty) to seek revenge of their wrongs on the body
of their accuser and that by private combat seul 6 seul, without judicial lists appointed
them.
BALDICK, supra note 5, at 32 (quoting JOHN SELDEN, THE DUELLO, OR SINGLE COMBAT (1610)).
The term "duel" rather than "duello" was first used in print in 1611; before that time, it was often
spelled "dual," as in an affair that involved two men. See KIERNAN, supra note 3, at 80.
10. Even Lorenzo Sabine, who in 1855 prefaced his 268-page alphabetically arranged list of
duels throughout history with a wish that his book might "lessen the number of single combats
between persons who may rightfully claim the appellation of gentlemen, and so do something to
advance the great cause of human brotherhood," counted among his duels an entry for "GOLIATH,
the Philistine, and DAVID, the Hebrew," explicitly linking modem pistols-at-ten-paces bloodshed
with epic Old Testament struggle. SABINE, supranote 2, at 184-185.
11. See BALDICK, supranote 5, at 115; SABINE, supra note 2, at 164.
12. See Evarts B. Greene, The Code of Honor in Colonial and Revolutionary Times, with
Special Reference to New England, 26 PUBL'NS OF THE COLONIAL SOC'Y OF MASS. 367, 371
(1926).
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NINETEENTH-CENTUR Y AMERICAN DUELING
custom of the colonizers rather than the colonized, a direct affront to the
Puritan mission of stamping out debauched and licentious Old World
behavior. Ironically, however, it was the Puritan stronghold of
Massachusetts-particularly Boston-that gained the most renown as a
dueling site in eighteenth-century America,
outstripping the South and
13
every other region of the fledgling nation.
Initiating a common pattern in American law, British authorities
responded to the rash of dueling in the colonies with ostensibly stringent
laws that had little effect on the actual incidence of dueling. After a spate
of infamous encounters on Boston Common in 1695, 1711, and 1718,
the colonial government in 1719 enacted a bill against dueling that
punished participants (even in nonfatal duels) with a maximum fine of
£100 and imprisonment of as long as six months, with an additional
requirement that the parties produce sureties for their good behavior for
a specified period of time.1 4 When this approach failed to prevent a fatal
1728 meeting on the Common between Henry Phillips and Benjamin
Woodbridge-two well-connected young men whose sword fight
became America's first fatal duel15-the response was a more drastic
statute that attempted to employ shame sanctions to counteract dueling's
social meaning as a prestige-enhancing device. 16 Under the new law, any
participant in a duel would be publicly carted to the gallows with a rope
around his neck, where he would sit for one hour before facing one
year's imprisonment and the giving of sureties for another year. If the
duel proved fatal, the survivor faced trial for "wilful murder," execution,
and, like the victim, coffinless burial without Christian rites and with a
stake driven through his body. 17 While it is not clear whether the
fearsome penalties of the Massachusetts law were ever brought to bear
on any individual, no other colony provided such harsh punishments.
Pennsylvania imposed a fine of £20 or three months'
imprisonment, and
18
Virginia had no specific dueling penalties at all.
13. Compare id. at 370 ("Duelling is commonly thought of as especially prevalent in the
South; but careful studies of the subject show that appeals to the code were very rare in colonial
Virginia, and there are cases on record which indicate public disapproval of the practice."), with
STEVENS, supra note 5, at 11 ("[D]espite the Puritan tradition against mutual slaughter there were
more notorious encounters in Massachusetts than in the entire South during most of the Colonial
Period.").
14. See Greene, supra note 12, at 371-73.
15.
See BALDICK, supra note 5, at 118.
16.
17.
18.
See Greene, supra note 12, at 375.
Id.
Id. at 375-76.
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By the time of the Revolution, dueling-which had already firmly
entrenched itself in American culture-became still more prevalent,
stem colonial laws notwithstanding. The turn of the nineteenth century
heralded the real heyday of dueling, heavily influenced by American
army and navy officers who had come into contact with the British code
of honor during the war and who had adopted the same forms to prove
themselves officers and gentlemen.' 9 Individual representatives of the
early Republic's quest for identity and credibility, its elites adopted the
very modes of the mother country they had lately conquered as a means
of demonstrating the all-important value they continued to share with
that country: honor. At the same time, however, it now fell to these same
elites to struggle with the paradox of a supposedly egalitarian, antistatus-hierarchy nation permitting certain of its citizens willfully to kill
as long as they were of a certain class and followed certain
each other
20
forms.
The Northern states seemed especially concerned by this
contradiction, promulgating new anti-dueling statutes in response to the
ritual's increasing popularity. Evidencing a slightly different basis for
19. Id.; see also STEVENS, supra note 5, at 50.
20. The importance of the duel as a tool of class hierarchy cannot be underestimated, since the
essential premise of the code of honor was that it was the gentleman's code and that only gentlemen
could meet on the field of honor. This fact helps explain the longevity of the duel in the South,
where the preservation of hierarchy and order were essential to the survival of the plantation system.
BRUCE, supra note 3, at 12 (describing the southern tendency "to see a threat to social order at
almost every turn"); BUEL, supra note 5, at 80-81 (noting that in the South, unlike the North,
"dueling became fashionable partly because social instability in the period between the Revolution
and the Civil War created the need for a means of distinguishing the gentry.").
Based on the social stratification the duel required and preserved, many scholars have
concluded that the code of honor functioned as a defensive device enabling elite classes faced with
pressures from below to assert their superiority to mere law. E.g., KIERNAN, supra note 3, at 81-82
("[T]hose who felt [British] duelling to be an evil were likely to think of it as an aristocratic vice. As
such it was more obnoxious to middle-class elements, urban and rural, feeling their growing
). But see Antony E. Simpson,
strength and resentful of the ascendancy of those above them ....
Dandelionson the Fieldof Honor: Dueling, the Middle Classes, andthe Law in Nineteenth-Century
England, 9 CRIM. JUST. HIST. 99, 116 (1988) ("The bourgeoisie demonstrated considerable
tolerance of the duel. This tolerance can be documented through the contrast between the law
affecting dueling and its application, and through the fact of substantial middle-class participation in
events on the field of honor.").
In any event, the tedium of gentry life both in Great Britain and America contributed
greatly to the prevalence of dueling among the upper classes. See KIERNAN, supra note 3, at 117
("A great deal must be allowed for sheer boredom."); WYATT-BROWN, supra note 3, at 328 (noting
the boredom of southern gentry life). Along with tedium came excessive use of alcohol. See
KIERNAN, supra note 3, at 120 (recounting Thackeray's observation that Restoration-era men spent
as much as a quarter of their time drinking). Bad moods did not help, either: Kieman notes that "'[a]
study of how people got on with one another in England from the fifteenth to the seventeenth
century indicates that at all levels men and women were extremely short-tempered."' Id. at 79.
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their opposition to the duel, a growing number of the post-revolutionary
statutes imposed political penalties that permanently disqualified the
parties from office. In the North the duel was beginning to be seen as
an offense against the civic entity, a privileging of interpersonal disputes
and the need for social validation above the countervailing values of
social order and state authority. It was only beginning to be seen this
way, however, for decades would elapse before northerners would reject
the duel altogether. From 1800 to 1810, New York-especially
Manhattan-rose to dubious prominence as a locus of dueling, albeit a
locus in name only because the majority of New York duelists ferried
across the Hudson River to the more congenial (i.e., less prosecutorially
aggressive) shores of New Jersey. 2 But the tragic outcome of the July
1804 duel between Aaron Burr and Alexander Hamilton largely quelled
New Yorkers' frenzy for dueling, with the state's last fatal encounter
taking place in late 1804 between Federalist newspaper editor William
Coleman and a Captain Thompson, Republican collector of the Port of
21. Greene, supra note 12, at 386-87; see also Greenberg, supra note 3, at 67 ("[I]n the
United States by the nineteenth century, the most common anti-dueling penalty had become a
disqualification from holding office."). Regional differences remained even among northern states,
with Massachusetts continuing to lead the way in strict anti-dueling laws with its 1784 statute that
revived and enhanced the shame sanctions of the earlier colonial statute. In addition to requiring
parties to non-fatal duels to sit on the gallows with ropes around their necks, the new law replaced
imprisonment with public whipping; instead of dishonorable burial of the guilty survivor of a fatal
duel, the new law provided for dissection. All participants were liable to disqualification from office
for three years. Pennsylvania, meanwhile, strengthened its penalties in 1779 to provide that parties
were subject to a fine of £500 or one year in prison, as well as permanent disqualification from
office. In 1786, however, the fine was reduced to £100 and the penalties were differentiated such
that the acceptor and the carrier of the challenge received half the penalties of the challenger;
additionally, the disqualification from office was omitted. Connecticut's 1779 law imposed a $3000
fine and perpetual disqualification from office on all parties and also required the challenger to find
sureties for his good behavior for life. Rhode Island's maximum fine was $500, and its maximum
imprisonment was six months, both for all parties; no political penalties were established. Greene,
supranote 12, at 386-88.
22. STEVENS, supra note 5, at 47; see also Joanne B. Freeman, Dueling as Politics:
Reinterpreting the Burr-Hamilton Duel, 53 WM. & MARY Q. 289, 294-95 (1996) (observing that
"there were more honor disputes in the early republic than previously recognized," and that in New
York City, "there were at least sixteen affairs of honor between 1795 and 1807, most of them
heretofore unrecognized because they did not result in a challenge or the exchange of fire").
Freeman also notes that dueling continued in New York City for several years after 1807. Id. at 295
n.17.
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New York, 23 near a desolate country lane known today to Manhattanites
as University Place.2 4
B. How It Worked. The Code of Honor.
Along with the duel's increasing popularity came increasing
formality. The modem, romanticized vision of the duel contemplates
billowing-white-shirted participants stand back-to-back before striding a
marked distance and wheeling around to fire at each other. The
nineteenth-century reality was similarly dramatic but open to significant
variation within the prescribed confines of what came to be known as the
"code of honor."
Interpreting a set of rules governing a moribund practice the sole
object of which was to effect intentional homicide presents modern-day
observers with a major hermeneutic challenge. Yet such an
understanding is crucial to a discussion of dueling, for conformity to the
code was essential to the duelist's claim of having behaved honorably. A
duelist who acted outside accepted norms jeopardized himself by failing
to present his actions as quotations of a socially approved system of
behavior. Moreover, his sloppiness elided the boundary between the duel
and the vengeful murder, potentially exposing gentlemanly duelistswith their just-in-case wills and gleaming matched pistols-as nothing
more than elegantly turned-out street brawlers. Furthermore, because
duelists conceived of "duelist" and "gentleman" as synonymous, they
escaped having to define "honor" because they could always assert that
anyone who needed to ask what honor was obviously lacked it-and
therefore had no business on its field.
On some level, then, the duelist's stated objective of proving his
honor was guaranteed to come to naught-or at the very least to
tautology-because his reasoning proceeded in the following manner:
1) 1 am a gentleman; 2) my honor has been traduced; 3) gentlemen duel
when their honor is traduced; 4) I must duel in order to affirm to the
world that I am indeed a gentleman. According to this reasoning, the
initial premise of the duel was identical to the desired conclusion: the
duelist is a gentleman and possesses a gentleman's honor.
23. STEVENS, supra note 5, at 47, 48-49. The parties fought at eleven o'clock at night during a
blinding snowstorm in order to avoid detection and swore to keep the meeting a secret thereafter.
Thompson was killed in the exchange. See id.
24. University Place lies at the heart of Greenwich Village, traversing the busy stretch
between Washington Square Park and Union Square.
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Enter the code, the mechanism by which one demonstrated that
one's own rule system mapped directly onto a kind of collective norm
comprising identical, aggregated individual norms. The code assured
each individual that not only was he a gentleman, he was a gentleman
among gentlemen. The status of "gentleman" was thus utterly relative,
an ostensibly personal quality that in reality had little or nothing to do
with the individual except insofar as it described his willingness,
Hamilton-like, to subordinate his private moral code to the public code
of honor.25 Because most duelists believed themselves to be gentlemen
and came to the field with that fact as a given, however, they could tell
themselves that their actions constituted a making patent of that ineffable
honor which was carried latent within them,26 rather than the bizarre and
anomalous social performance that those actions are now considered to
be.
The question of what "really" was happening and what was
exerting the force that compelled people to duel is unknowable. The
essential point is that people at the time did not think about these things
or in these terms. On the contrary, they viewed as completely permeable
the boundary between themselves, their morals, and their society;
therefore, one could argue, they did not conceive of it as a boundary at
all. (And further, one could argue, such a boundary did not exist.) Thus,
the question "Do I duel to validate my own conception of myself as a
gentleman or to achieve external validation from those around me when
assembled in their corporate form as 'society'?" would have been
unthinkable to the early-nineteenth-century dueling gentleman because
25. Much of the scholarship on dueling has focused exclusively on the South and has
concluded that the southern quest for honor was "public" insofar as its goal was to enhance status
and reputation vis-A-vis other individuals. See, e.g., AYERS, supra note 3, at 16 ("Since the heart of
honor was the respect of others, public life offered the opportunity to garner honor from the
broadest of all audiences."); BRUCE, supra note 3, at 29 ("[H]onor was very much a public matter,
involving not only one's opinion of himself, but also his sense of what others should expect him to
be."); WYATT-BROWN, supranote 3, at 350 (describing honor as the reflection of the community's
judgment of a man); William W. Fisher, III, Ideology and Imagery in the Law of Slavery, 68 CHI.KENT L. REV. 1051, 1073 (1993) ("The organizing idea of the code of conduct to which [white
southern men] committed themselves was that a man has only so much worth as others confer upon
him-or, put differently, that a man is what he appears to be."); Greenberg, supra note 3, at 62
("The central issue of concern to men in [a culture of honor] is not the nature of some underlying
reality but the acceptance of their projections."); Stowe, supra note 3, at 8 ("[I]t seems to have been
particularly Southern to stress an awareness of a man's public image .... ").
26. Cf HANNAH ARENDT, THE HUMAN CONDITION 175 (2d ed., Univ. of Chicago Press 1998)
(1958) (quoting DANTE ALIGHERI, I DE MONARCHIA 13 (1310): "For in every action what is
primarily intended by the doer, whether he acts from natural necessity or out of free will, is the
disclosure of his own image.... Thus, nothing acts unless [by acting] it makes patent its latent
self.").
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the order of his universe hinged on the belief that these two forms of
validation were identical, that self-conception as a gentleman was
worthless without providing society with the opportunity to judge for
itself.27 It did not seem incongruous to him to claim public space to hash
out his personal disputes because he saw both as unified by their
28
presence in the undivided world of his experience as a gentleman.
1. The Codes.
The first written compilation of the rules for plein-air dispute
resolution emerged in 1777 in the form of twenty-six articles adopted at
the Clonmel, Ireland, summer assizes.2 9 Known in Galway as the "thirtysix commandments, 30 the Clonmel code quickly came to dominate
duels beyond Ireland, spreading throughout Britain and its colonies and
eventually to the United States.3 ' Unable to resist the temptation to
27. Cf KIERNAN, supra note 3, at 15 ("By the ritual of the duel, private resentments were
lifted above the merely personal level of revenge; the combatant's honour merged into that of the
class to which both he and his antagonist belonged, and to which they were making a joint
obeisance. It was this corporate honour that all its members were bound to uphold.").
28. Whether the nineteenth-century duelist's view or the modem view is more accurate is
beyond the scope of this Article. The point here is that the early-nineteenth-century worldview
allowed for dueling because it had not yet devised (and then convinced itself that it had not devised
but rather that it had discovered) a distinction between public and private spheres of life.
29.
BALDICK, supra note 5, at 33.
30. SABINE, supra note 2, at 30. The thoughtful authors of the code included the following
rules:
Rule 13. No dumb-shooting or firing in the air admissible in any case. The challenger
ought not to have challenged without receiving offence, and the challenged ought, if he
gave offence, to have made an apology before he came on the ground; therefore
children's play must be dishonorable on one side or the other, and is accordingly
prohibited.
Rule 22. Any wound sufficient to agitate the nerves and necessarily make the hand
shake, must end the business for that day.
Rule 25. Where seconds disagree, and resolve to exchange shots themselves, it must be
at the same time and at right angles with their principals .... If with swords, side by side,
with five paces interval.
Id. at 32-34.
31. The speedy rise of the Clonmel code becomes all the more interesting when contrasted
with the conspicuous current of anti-Irish rhetoric running through contemporary British and
American commentaries on dueling. Considered hot-tempered and mercurial, Irishmen were seen as
particularly avid duelists. But in spite of-or perhaps because of-this abundant experience on the
field of honor, they were thought to be unreliable seconds and conniving adversaries, their
countrymen's authorship of the great code notwithstanding. Baldick elaborates:
All authorities were agreed that seconds should be men of experience and moral courage,
justice and urbanity; and two authorities specifically debarred infidels and Irishmen-the
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produce a British version, an anonymous author calling himself "A
Traveller" published a manual titled The Art of Duelling in 1836, which
quickly became the most popular treatise on the subject in Britain,
detailing precisely how one should conduct oneself at a rencontre
Apparently believing that earlier guides had paid insufficient attention to
the duelist's preparations, "A Traveller" advised the principal to plan a
festive evening of cards and port the night before the encounter, rise at
five o'clock on the fateful morning, take coffee and a biscuit, and set out
for the dueling ground in an anonymous post-chaise lest his own
carriage be recognized by Bow Street authorities; upon reaching the
field, "'he should dismount and walk about, coolly puffing his cigar,
second to forward the arrangements and mark out the
leaving his
33
ground.'
Both the Clonmel code and the advice of "A Traveller" served as
the backdrop to the seminal American dueling treatise: former South
Carolina governor John Lyde Wilson's 1858 Code of Honor.34 Before
embarking on a list of numbered rules for dueling, Wilson's forty-sixpage book addressed the public to explain that the book was aimed at
bringing about an end to dueling by educating the young "[s]crupulously
to guard individual honor, by a high personal self-respect, and the
practice of every commendable virtue. 3 5 Wilson then proceeded to
enumerate specific rules of conduct for sending a challenge, receiving a
challenge, carrying out the duties of a second, loading the weapons, and
conducting events on the ground.
2.
Prelude to the Meeting.
Most duels arose out of a verbal slight in which one gentleman
called into question the character of another by using certain coded
words such as "puppy,, 36 "liar, poltroon, [or] coward., 37 The insults
former because... "itis not proper that an unbeliever should witness the shedding of
Christian blood, which would delight him," and the latter because "nine out of ten
Irishmen have such an innate love of fighting that they cannot bring an affair to an
amicable adjustment."
BALDICK, supra note 5, at 38.
32. Id. at 45.
33. Id. at 45-46 (quoting "A Traveller," The Art of Duelling (1836)).
34. JOHN LYDE WILSON, THE CODE OF HONOR; OR RULES FOR THE GOVERNMENT OF
PRINCIPALS AND SECONDS IN DUELLING (Charleston, James Phinney 1858).
35. ld. at 9.
36. In this context, "puppy" signifies not a small dog, but "a fop or coxcomb, corresponding
to the French poup6e; the word charges a man with being little more than a woman's plaything or
pet." Freeman, supranote 22, at 299.
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most widely acknowledged to be duelworthy attacked the veracity and
therefore the manliness of an individual, attempting to unmask him as
something other than what he appeared to be and thereby "proclaim[ing]
as false [his] projection of [himself]. 3 8 Known among gentlemen as
"giving the lie," these accusations of dissembling justified-and even
demanded-the issuance of a challenge from the accused party to his
accuser, for only by confronting the issuer of the insult could the
"satisfaction" that would restore
affronted party obtain the all-important
39
his honor and his reputation.
But satisfaction would not come quickly. As soon as an individual
believed he had been given the lie,40 the verbal exchanges took on a new
solemnity as the parties began to conform their particular set of events to
the template of the duel. From the initial insult to the meeting on the
field, the duel was driven by and understood according to words with
specific cultural meaning. Furthermore, because both parties shared the
vocabulary of honor, as soon as "events" recast themselves as the
particular thing called "an affair of honor" it was clear what would
happen next. The formality of the duel began early: the ritual insult; the
predetermined meaning; the adoption of bastardized French terms of art
such as "rencontre" (meeting), "leech" (to step up to the point of fire),
"releaguer" (dueling ground).4
37. See WYATT-BROWN, supra note 3, at 360.
38. Greenberg, supra note 3, at 63; see also Stowe, supra note 3, at 12 (.'Personal' language,
the language in which duels were rooted, was language that cast a man's motives, his intentions, and
hence his character and leadership position into public doubt.").
39. Contemporary critics of dueling made much of this need to maintain reputation. See, e.g.,
FREDERICK BEASLEY, A SERMON ON DUELLING 22 (Baltimore, Joseph Robinson 1811)
(commenting that seducers, adulterers, and libertines "when sprinkled with the blood shed in these
holy conflicts, come out with the purity of confessors.... Wonderful, in such cases, is the efficacy
of a duel! Miraculous it's [sic] power, in cleansing the reputation from the most indelible stains!");
SAMUEL Low, A DISCOURSE ON DUELLING 16 (Richmond, John O'Lynch 1811) ("They feel no real
hostility; they only affect or appear to desire revenge: andfor what reason? because their reputation
is at stake, and the world, forsooth, expects and requires a duel; because their honor demands the
sacrifice. Oh supreme folly! infatuation worse than madness! Oh daring wickedness! shocking
impiety!").
40. Not everyone viewed "giving the lie" as an unimpeachable ground for dueling. Andrew
Steinmetz, a 19th-century British observer, reported the following anecdote:
A graduate of Cambridge gave another the lie, and a challenge followed. The
mathematical tutor of his college, Mr. V-, heard of the dispute, and sent for the youth,
who told him he must fight.
"Why?" asked the mathematician.
"Because he gave me the lie," said the youth.
"Very well; let him prove it; if he proves it, you did lie, and if he does not prove it, he
lies. Why should you shoot one another? Let him prove it. Q.E.D."
STEINMETZ, supra note 2, at 380.
41. See Simpson, supra note 20, at 109.
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The end to be achieved was satisfaction, but the thing to be avoided
if possible was the challenge. As technological advances made pistols
rather than swords the weapon of choice for duelists, the chances of
serious injury increased. In 1817, a British commentator estimated that a
duelist had a one-in-four chance of being killed or wounded.4 2
Consequently, elaborate negotiations preceded any meeting on the field
and often continued up to the day of the meeting, motivated by both
sides' desire to avoid the meeting altogether by salving wounded honor
with scrupulous formality. Authorities advised cool deliberation and
immediate resort to written communication as a means of controlling
emotion, both as a sign of good breeding and as a safeguard against
inflaming the dispute. Under the heading "The Person Insulted, Before
Challenge Sent," Wilson's code recited in detail the proper approach,
albeit-as the title suggests-assuming that a challenge would issue in
the end: "Never send a challenge in the first instance, for that precludes
all negotiation. Let your note be in the language of a gentleman, and let
the subject matter of complaint be truly and fairly set forth, cautiously
3
avoiding attributing to the adverse party any improper motive.A
But there was only so much an affronted party could do before
enlisting the assistance of a second, a trusted confidant ("a friend," in the
nuanced parlance of the pre-duel correspondence 44) to represent him in
his negotiations with the adversary. The role of the second cannot be
underestimated; indeed, Wilson opined that "nine duels out of ten, if not
ninety-nine out of a hundred, originate in the want of experience in the
seconds. '45 Each second had full authority to exercise his judgment on
42. See id. at 112. Technological advances occurred within limits; however, before the 1830s,
even the best pistols were not completely accurate, with "disparts" or "throws" (deviations from
trajectory) estimated as half an inch or more across a distance of twelve to fifteen yards. BALDICK,
supra note 5, at 43. Although gun manufacturers insisted that more accurate weapons would reduce
incentives to duel, see id. at 44, modem commentators have concluded that a similarly lethal
advance-the replacement of the sword by the pistol-"had the effect of strengthening the power of
the duel as a public test of courage alone." Simpson, supra note 20, at 114.
43. WILSON, supra note 34, at 12.
44. Correspondence associated with the 1797 affair of honor between Alexander Hamilton
and James Monroe, which ended before the parties reached the field, uses typically elliptical
language: "Mr. Hamilton requests an interview with Mr. Monroe at any hour tomorrow forenoon
which may be convenient to him. Particular reasons will induce him to bring with him a friend to be
present at what may pass. Mr. Monroe, if he pleases, may have another." Freeman, supra note 22, at
300 (quoting Hamilton to Monroe, 21 HAMILTON PAPERS 57 (July 10, 1797)).
45. WILSON, supra note 34, at 10. Not every observer took such a charitable view, however.
See, e.g., WALTER COLTON, REMARKS ON DUELLING 34 (New York, Jonathan Leavitt 1828) ("But
for the fiery agency of these irresponsible subaltems, a duel would seldom take place; and much less
seldom terminate fatally. They seem to take an infernal delight in bringing the matter to the most
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behalf of his principal and to cobble together a mutually acceptable
resolution to the disagreement. The involvement of the second was thus
another formalized code element aimed at controlling duelists' passions
in order to ensure "civilized" duels and to mitigate the rage associated
with affronts to masculine character.4 6
In the most extreme version of the principal-second relationship-a
version upon which dueling's critics often seized-the principals were
envisioned as "passive instruments, with no other functions than to pull
triggers at word of command." 47 While Wilson did exhort the
conscientious second to withdraw "when your principal refuses to do
what you require of him,, 4 8 it seems safe to assume that this rarely
occurred. Instead, the seconds often cooperated with each other to bring
the dispute to a nonviolent resolution, even going so far as agreeing to
withhold principals' inflammatory notes in hopes of staving off a trip to
the dueling ground.49 Ultimately, the seconds functioned as the arbiters
of satisfaction, custodians of their own principals' honor and guarantors
of the identity between the gentleman and the duelist.
Despite the seconds' endeavors, however, the negotiations often
broke down, and the challenge-also called the "cartel"-issued from
the offended party (by way of his second) to the offender.50 It then fell to
disastrous issue possible.... They wish to push their leaders to the direst extremities; and labour to
defeat any attempt at reconciliation, till the grave has one of the principals, and infamy the other.").
46. BRUCE, supra note 3, at 32-33. Bruce's study focuses on dueling as a particularly southern
conflict between natural passion and civilized restraint, see id. at 38, but the specific point about
seconds may be generalized to both North and South.
47. Duelling in America, 15 LIVING AGE 467, 468 (Dec. 4, 1847). Echoing Wilson's lament
but in the service of the opposition to dueling, the Boston journal continued: "What a scandal to an
age of civilization, that A and B should shoot each other because C and D did not know what they
were about, and had not the sense necessary to the adjustment of an affair of honor!" Id.
48.
WILSON, supranote 34, at 20.
49. BRUCE, supra note 3, at 33. At least two commentators have likened the seconds to
attorneys negotiating a contract. See KIERNAN, supra note 3, at 139 ("Most issues could be
resolved, it was often held, by judicious management. Between them the seconds could constitute a
small court of honour."); Warren F. Schwartz et al., The Duel: Can These Gentlemen Be Acting
Efficiently?, 13 J. LEGAL STUD. 321, 337-40 (1984) (describing the seconds as acting both as
representatives and as independent judges).
50. Wilson's code was uncharacteristically vague as to precisely when a party could
justifiably send a challenge: "After all efforts for a reconciliation are over, the party aggrieved sends
a challenge to his adversary, which is delivered to his second." WILSON, supra note 34, at 21. The
Clonmel code also skirted the issue. See Simpson, supra note 20, at 113 ("It includes considerable
detail on the conduct of the duel, and the conditions under which it was concluded. The things never
regulated were the exact circumstances that justified the issuing of a challenge, and the form it
should take.").
Sometimes the challenge failed to have the desired result and was declined by the
recipient. In such situations, the sender would often print an item in the newspaper or post a public
notice declaring the unwilling adversary a coward. Known as "posting," this procedure was a purely
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the seconds to draw up the rules that would govern the encounter. The
rules specified type of weapons, distance, procedure for giving the
command to fire, and number of exchanges of fire, all with an eye
toward equality between the principals. Additionally, in the day or two
before the meeting the seconds on each side of the affair aided their
principals in practicing marksmanship and, less optimistically, drawing
up wills.
3. Encounter on the Field.
And so they came to the field, usually at dawn. Many cities had
their own celebrated dueling grounds, semi-secret places with names like
Bloody Island (in the Mississippi River near St. Louis) and the Dueling
Oaks (outside New Orleans). In addition, the District of Columbia had
the Bladensburg, Maryland, dueling ground; New York had
Weehawken; London had Hyde Park; and Paris the Bois de Boulogne.
This is one of the great ironies of dueling: ostensibly motivated by fear
of legal sanctions, the parties traveled to sites known by everyone in the
community to be suitable for conducting affairs of honor and named
accordingly in the local lexicon. In so doing, the parties obliterated any
colorable claim to being anything but duelists as they raced over the road
in their hired carriages at sunrise, privileging the ritual value attached to
a particular piece of land above the need to elude the negligible chance
of arrest.
Rather than focusing on secrecy for its own sake, duelists sought
out these symbolic sites as part of their performance of the script of the
duel, demonstrating to all the world their grasp of what it meant to
engage oneself in an affair of honor. Moreover, the quasi-public nature
of the dueling grounds-identified enough to possess group meaning,
concealed enough to be appropriate for a dispute between private
American invention and supposedly originated in 1807, when General James Wilkinson responded
to Virginia Congressman John Randolph's disdainful decline of his challenge by posting signs
saying, "I denounce to the world John Randolph, a member of Congress, as a prevaricating, base,
calumniating scoundrel, poltroon, and coward." TRUMAN, supra note 2, at 83-84. Typically, the
recipient's silence stemmed from a belief that the challenger was a social inferior and therefore not
entitled to issue a challenge at all. In such cases, the venomous posting might have little effect.
In other cases, the posting led to a subsequent publication by the recipient of the challenge
(and target of the posting) explaining his version of events and disclaiming responsibility for the
unfortunate situation. One such recipient, Colonel Isaac A. Coles, was posted by Dr. James C.
Bronaugh as "a base liar, infamous scoundrel, and coward." Coles's response was a broadside
beginning, "Forced before the Public by Doctor Bronaugh, the following Notes place us as we ought
to stand," and reprinting all his correspondence from Bronaugh. I.A. COLES, FORCED BEFORE THE
PUBLIC BY DOCTOR BRONAUGH...
(n.p. 1815).
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gentlemen-reflected the duelist's fragile conception of himself as an
individual called upon to prove to the world that he was indeed what he
claimed to be. On a more fundamental level, mutual adherence to a
fictitious secrecy functioned to assure the duelists of the very thing they
were out in the field to demonstrate: namely, that each contained within
himself a particular self-conception that could readily be translated and
understood by those around him because they contained it as well. Even
as they prepared to take each other's life, duelists devoted punctilious
attention to concealing weapons in portmanteaus so that onlookers could
honestly report that they had not seen guns. Other common practices
included firing while attendants' backs were turned so that they would
not see the shots and hiding behind umbrellas after the exchange so that
the attendants would be able to say that they had not actually seen the
principals on the field.5
Elaborate schemes of concealment notwithstanding, at some point
the principals stood facing each other, their actions driven by the
procedural rules the seconds had drawn up. In addition to the principals
and the seconds (and further eroding the myth of secrecy), doctors often
stood at a safe distance from the immediate area of gunfire, averting
their eyes to avoid any charges that they had aided in a duel.52 In his
section titled "Who Should Be on the Ground," Wilson directed that
each principal might bring his own surgeon and assistant surgeon, as
well as any number of friends as agreed upon by the seconds with the
exception of sons, fathers, or brothers of the principals. 3
All these onlookers stood by as the seconds loaded the pistols.
Wilson preferred "smooth-bore pistols, not exceeding nine inches in
length, with flint and steel" but commented that "[p]ercussion pistols
may be mutually used if agreed on, but to object on that account is
lawful. 54 After loading the weapon, the second was to present it by
placing it in the principal's non-shooting hand with the muzzle facing
opposite the direction in which he would fire. The principal was then to
grasp the weapon in his pistol hand and bring it to the fighting position:
"with the muzzle down and the barrel from you."5 5
51. See Freeman, supra note 22, at 303 (describing precautions taken at the Burr-Hamilton
duel); see also GORE VIDAL, BURR 269 (1973) ("'Pendleton carries an umbrella. So does Van Ness.
Which looks most peculiar on a summer morning but the umbrellas are to disguise our features. We
are now about to break the law."').
52. See KIERNAN, supra note 3, at 147.
53. See WILSON, supra note 34, at 29. Presumably, this prohibition stemmed from concerns
about emotion overwhelming the supposed rationality of the code.
54. Id. at 30.
55. Id.at 31.
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Distance varied depending on the arrangement the seconds had
brokered. Some duels began with the parties facing each other, in
contrast to the popular back-to-back image. 6 The customary distance
was twelve paces, or twenty yards.57 As for the actual firing, the duel
was more a test of nerve and steadiness than of simple speed, for the
"most common command" was "Ready?"... "Fire! ... One...
Two... Three... Stop!", with the principals allowed to shoot at any
point between the word "Fire" and the word "Stop., 58 Weapon
malfunctions generally counted as fires. After the first round of fire, the
seconds met to determine whether the injured party's honor had been
satisfied, which it often was after a single round with no injuries. In
cases where the challenger felt the affront to be more serious, however,
the exchange could last for as many as three or four rounds before one of
the bullets found its mark and either satisfaction or injury was
obtained.5 9 An injured principal had a duty to say he had been hit, at
which point the duel would cease and the challenger either could
demand no more or, if the challenger was the victim, he would excuse
his opponent from the field.6 °
But some of the most celebrated duelists eschewed these
formalities, often without alerting opponents that they had opted out of
the rules. One such renegade was Andrew Jackson, whose 1806 duel
(one of many in his lifetime) with Charles Dickinson earned him years
of infamy. After Dickinson allegedly insulted Jackson's wife Rachel and
reneged on a promissory note to Jackson, the two met on the banks of
Kentucky's Red River according to the following rules: "'[T]he distance
shall be twenty-four feet; the parties to stand facing each other, with
their pistols down perpendicularly. When they are ready, the single
word, "Fire," to be given; at which they are to fire as soon as they
please."' 61 Dickinson fired first, and as the report issued from
56. See BEN C. TRUMAN, DUELLING IN AMERICA 18 (Steven Randolph Wood ed., Joseph
Tabler Books 1992) (1884).
57. See KIERNAN, supra note 3, at 147.
58. See TRUMAN, supranote 56, at 19.
59. See BRUCE, supra note 3, at 36-37.
60. See id. at 37. Deliberately bloodless duels occasionally crop up in histories of dueling;
they "originated not by prior mutual agreement, but by each principal's decision to put his own life
on the line while not placing that of his opponent in jeopardy. The drama of the duel was contained
in the risk each participant had to take as he sought to defend his honor on the ground." Id.
Indeed, brazen public acceptance of risk-to the point of foolhardiness-became one of
the recurring themes of the duel. One anecdote tells of a Joseph Cheves who, reluctant to fight but
not to display a flair for the dramatic, toasted his adversary William Trapier with champagne before
every shot, drank, and then fired in the air. Id. at 37-38.
61. Webb, supranote 5, at 71. The following description comes entirely from Webb.
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Dickinson's pistol, Jackson-wearing a long, heavy overcoat although
the day was warm-clasped his left arm against his chest and raised his
pistol. Stepping off his mark, Dickinson cried, "'Great God! Have I
missed him?"' and had to be ordered back to his place. This time
Jackson's pistol malfunctioned and failed to fire. Dickinson and his
second had every right to demand that this be counted as Jackson's turn,
but they remained mute. Jackson recocked his pistol and fired again, and
Dickinson dropped to the ground dead. As Jackson and his second left
the field, it became apparent that Jackson had in fact been hit by
Dickinson's first shot but had twisted sideways in the thick coat,
deflecting the bullet from his heart to his breastbone and ribcage, where
it remained lodged for the rest of his life. Jackson had deliberately worn
a bulky overcoat, failed to announce that he had been hit, and arguably
fired out of turn when he took deadly aim at Dickinson-three major
that resulted in widespread public criticism of his
code breaches
62
behavior.
C. Attitudes TowardEarly Duels.
Early-nineteenth-century duels drew a great deal of attention
because they often involved political figures and other renowned
persons. Joanne Freeman has described the early republican duel as an
example of the highly personal nature of early-nineteenth-century
politics and the consequent blurring that occurred between politicians'
self-image and self-performance. For Alexander Hamilton and his
contemporaries, she writes,
the duel was a praiseworthy attempt to serve the common good, a
public, political act. Yet it was also an intensely personal attempt to
preserve his public career and private sense of self-to prove to the
he was a man of his word, a man of courage
world and to himself that
63
and principle, a leader.
Because they viewed the political arena as governed by the same
norms of personal honor that controlled every other domain of activity,
62. Id. Interestingly, Sabine's alphabetical compendium of duels throughout history does not
mention the Jackson-Dickinson affair. Under "Jackson, Andrew," Sabine says only the following:
Unable to obtain authentic accounts of the affairs with which he was connected in early
life, and unwilling to do so distinguished a person injustice, I deem it best to use no part
of the fragmentary materials in my possession, and to ask the reader's indulgence until
better success shall attend my researches.
SABINE, supra note 2, at 221. Was this perhaps a thinly veiled attempt to circumvent speaking ill of
a then-venerated (and rehabilitated) figure? Sabine says no more. Id.
63. Freeman, supra note 22, at 292-93.
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leaders of the time believed in the logic of the duel. "[M]en of public
duty and private ambition who identified so closely with their public
roles that they could not always distinguish between their identity as
gentlemen and their status as political leaders, 64 they saw no
incongruity between conducting their professional as well as personal
lives according to the code of honor. On the contrary: like dueling,
politics was a gentleman's business, a business that took as its baseline
the common possession of certain ideas and values but that was so
anxious about the preservation of these values that it required its
practitioners constantly to reaffirm their devotion. As Hamilton's
anguish demonstrates, however, obedience to the code of honor
sometimes required gentlemen to surrender their personal beliefs in
order to defend their public reputations.
Significantly, both dueling and politics were seen as calling upon
elite men to produce for society the best from within themselves. And as
long as they believed in the classical republican equivalence between
personal and civic virtue, the public arena served as both the source of
and the forum for the activities that constituted gentlemanliness. The
constant across all areas of the gentleman's life was his honor, which
proceeded in a loop from his presentation of himself in the public gaze
to his benevolent but firm governance of his family and landholdings
and back into the public gaze. The code of honor required a unified view
of the world in which "home," "work," and "politics" were seen not as
overarching, autonomous institutions but simply as specific, defined
types of activity. Thus, the dueling, politicking gentleman could view
himself as engaging in these pursuits rather than as adopting different
personas for different spheres of his life. The self maintained its integrity
as it went about its activities without ever contemplating that the
activities might rise up and demand the power to define the self.
Unconsciously, the gentleman distinguished between noun and relative
phrase: I am not a duelist, I am a gentleman who duels; I am not a
politician, I am a gentleman who engages in politics. As long as these
statements remained true, nothing more than the gentleman's fine-tuned
sense of decorum was necessary. Only when the category of
"gentleman" was no longer necessarily coterminous with those of
"duelist" and "statesman" did anyone consider that what had previously
been understood as a general statement about the world (i.e., all
gentlemen behave this way) was really a specific postulate about a
64. Id. at 295.
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certain kind of social order (i.e., if gentlemen derive their identity from
the public realm, then they will behave this way).
Not all citizens of the early Republic sympathized with the internal
logic of the duel, however. On the contrary, the Burr-Hamilton affair,
the encounter that has defined dueling in America since July 11, 1804,
plunged the nation into mourning for the martyred victim and arguably
destroyed the reviled survivor, who fled south to avoid indictments in
New York and New Jersey for issuing a challenge and for murder,
respectively. 65 Even eighty years later the standard story of noble
Hamilton and vile Burr endured:
Undoubtedly the survivor was made to feel the hell that seems to have
been reserved for him upon earth. The living victim of that fatal
meeting upon the banks of the noble Hudson was the greater victim of
the two. He killed his opponent, to be sure, but he made him a god,
and ingloriously
with fifty millions of people to-day as worshippers,
66
shot himself into a loathsome living grave.
In response to events on the heights at Weehawken, several
northern states passed more stringent anti-dueling laws, but the practice
proved too deeply ingrained to be curtailed by law alone. Only one
state-Illinois--ever hanged a man for murder by dueling.67
Furthermore, the Burr-Hamilton affair was followed in 1820 by a
famous duel between Commodore Stephen Decatur and Commodore
James Barron in which Decatur, "the glory of the navy and the pride of
the nation,, 68 was killed with pistols at the popular distance of eight
paces. Clearly, the United States was still too enamored of affairs of
65. See STEVENS, supranote 5, at 161-62. For a detailed description and analysis of the BurrHamilton duel and associated events, see Freeman, supra note 22, at 304-18.
66. TRUMAN, supranote 2, at 352.
67. See DON C. SEITZ, FAMOUS AMERICAN DUELS, WITH SOME ACCOUNT OF THE CAUSES
THAT LED UP TO THEM AND THE MEN ENGAGED 29 (1929). News of the Illinois execution, which
occurred in 1819, quickly spread precisely because it was unprecedented. William Bennett had
challenged Alphonso Stewart, and Stewart was killed, resulting in a murder conviction for Bennett.
The pair fought with rifles at 25 paces. KIERNAN, supra note 3,at 306; SEITZ, supra, at 29.
68. The Bladensburg Dueling Ground, 16 HARPER'S NEW MONTHLY MAG. 471,475 (1858).
Harper'swent on to reprint the following obituary from the NationalIntelligencer:
"A HERO HAS FALLEN! Commodore STEPHEN DECATUR, one of the first officers of
our navy-the pride of his country-the gallant and noble-hearted gentleman-IS NO
MORE.
Mourn, Columbia! for one of thy brightest stars is set-a son 'without fear and
without reproach'-in the freshness of his fame-in the prime of his usefulness-has
descended to the tomb."
Id. at 480-81 (quoting National Intelligencer,Mar. 23, 1820).
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honor to be swayed by the deaths of a few national heroes, deaths that
ultimately served to enhance the mythic status of the duel.
As they observed the duel gaining in popularity, many public
figures undertook after 1804 to convince the American people of the
absurdity and sinfulness of dueling. Usually delivered as sermons or
public addresses and then printed in pamphlet form, these philippics
issued from some of the nation's most prominent divines and moral
leaders. Many of these addresses attacked the duelist's need for external
validation, depicting it as a sign of moral decay and preoccupation with
public glamour at the expense of personal rectitude. In an attempt to
capture the term "gentleman" and invest it with the Protestant ethic of
inner character, dueling's opponents insisted that true honor required
something besides public acclaim; it required the self-contained moral
courage of the honest, authentic individual.6 9 Yet this vision of private,
moral courage did not wholly reject the code of honor's emphasis on the
public realm; on the contrary, the private Christian gentleman was
expected to issue forth into the world and enact his core virtue in the
commercial and political arenas.
One of the most widely circulated addresses was a sermon
delivered by Timothy Dwight, president of Yale College, in September
1804. Obviously aware that his timing suggested a direct response to the
death of Hamilton two months earlier, Dwight prefaced his comments
with the following disclaimer, which likely had an effect opposite to its
stated goal:
The following discourse was written, and is this day delivered, by
particular request. It is no part of the design of any observations made
in it to refer to any particular events or persons. Whatever may be
thought of a late encounter, which has engrossed the attention of this
country, it is especially to be remarked, that I do not intend to refer to
it at all.7"
Casting the duelist as a depraved character with a selfish need for
the approval of others, Dwight attacked both the man of honor and the
society in which he lived. But his sermon expressed ambivalence with
69. Southerners, too, perceived a conflict between the practice of dueling and the teachings of
Christianity. The evangelical movement was especially critical of the code of honor, for "[m]any of
the activities the Code commended or tolerated-materialism, ostentation, drinking, gambling, and
(above all) dueling-they denounced as sinful. Honor itself they characterized as a delusion, and the
love of it as a form of bondage." Fisher, supra note 25, at 1075 (footnotes omitted).
70. TIMOTHY DWIGHT, THE FOLLY, GUILT, AND MISCHIEFS OF DUELLING: A SERMON,
PREACHED IN THE COLLEGE CHAPEL AT NEW HAVEN, ON THE SABBATH PRECEDING THE ANNUAL
COMMENCEMENT, SEPTEMBER, 1804, at 5 (Hartford, Hudson and Goodwin 1805).
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regard to where public opinion truly stood on the question of dueling.
For his message to work, it had to acknowledge the importance of
enlightened, anti-dueling public opinion while rejecting its malevolent,
code-of-honor-enforcing incarnation. At one point, Dwight stated that
"public opinion has erred endlessly in every age and country,"
suggesting that the would-be duelist should instead stand firm against
the unhealthy influences of those around him. 71 Yet the next page finds
Dwight "boldly deny[ing], that the generality of men, in any (civilized)
country, ever justified dueling, or respected duellists.... In this country,
certainly, the public voice is wholly against the practice."7 2 Without
resolving this contradiction, Dwight concluded that the real outrage lay
in the duelist's willingness to shirk his responsibilities to those around
him: "As a man, he owes ten thousand duties to his fellow men; and
these are all commanded by his God. His labours, his example, his
prayers, are daily due to the neighbour, the stranger, the poor, and the
public. He cannot withdraw them without sin."73
In contrast to Dwight's emphasis on the individual duelist, Lyman
Beecher addressed his April 16, 1806, sermon to abating the spread of
dueling. How were conscientious opponents to the code of honor to
prevent it from winning more lives? "By withholding [their] suffrages
from every man whose hands are stained with blood, and by intrusting to
men of fair character and moral principle the making and execution of
your laws."7 4 Beecher aimed to strike at the very heart of the tripartite
gentleman-duel-politics alliance, sundering the unity between the
gentleman-acting-as-duelist and the gentleman-acting-as-politician and
establishing a new set of norms to govern the realm of political activity.
By severing the connection between the code duello and politics,
Beecher sought to erect a boundary around the area of political activity.
In so doing, he proposed a distinctly public, political sphere that required
those who would enter it self-consciously to accept and conform to its
special rules. The code of honor would thus be reduced from a generally
appropriate mode of behavior to a narrowly defined and artificial set of
rules suddenly out of place in one of its essential theaters of operation.
Deprived of the ability to perform his honor, the politician would be
forced to find other ways to prove his fitness for public office.
71.
72.
Id. at 13.
Id. at 14.
73.
Id. at 22.
74. LYMAN BEECHER, THE REMEDY FOR DUELLING: A SERMON, DELIVERED BEFORE THE
PRESBYTERY OF LONG-ISLAND, AT THE OPENING OF THEIR SESSION AT AQUEBOGUE, April 16,
1806, at 7 (Sag Harbor, N.Y., Alden Spooner 1807).
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There is an irony here, for this is precisely the opposite of what
Beecher conceived himself to be doing. Even as his sermon called for
politics to be set off as a special zone that no duelist could penetrate, an
exceptional safe harbor separate from the great confusion of every other
human activity, Beecher seemed to take as his premise the notion that it
was duelists who were the outliers from society, operating in a narrow
and unrealistic mode of behavior. While his suffrage-based remedy put
forth a vision of "politics" as a new entity created and defined in order to
remove it from the ravages of the duelist's bloodied hands, his larger
message aimed to convince his listeners that dueling was not as
widespread as they had been led to believe.75 In other words, the logical
conclusion of his no-votes-for-duelists campaign would be to drive a
wedge between the small, political (duel-free) and the large, personal
(duel-full) arenas of activity, even as he argued that it was dueling that
was aberrant and parochial.
Other elements of Beecher's sermon suggest a nascent conception
of a distinction between private and public morality but quickly reject
that distinction out of a fear of its repercussions for public life. In
phrases uncannily similar to sentiments uttered today, Beecher addressed
the relevance of private morality:
[W]hat is a man's political creed-what is his past conformity to your
wishes, when his profligate private life demonstrates that he is
prepared to betray you the first moment he shall find it for his interest?
Dispense with moralprinciple andprivate virtue, and all is gone.76
For Beecher, then, private virtue had some content apart from the
private and dangerous values embodied in the code of honor. Moreover,
"private virtue" was so named presumably because it contrasted with
some other sort of virtue that existed in a different realm of human
activity. Yet Beecher was unwilling to conceive of a genuine separation
between public and private virtue, as illustrated by his conclusion that
political activity required private morality. Like dueling's proponents,
75. See, e.g., id. at 33 ("There are yet remaining multitudes, thousands and thousands whose
abhorrence of duelling, though diminished by the frequency of the crime, is still sufficient to
overwhelm its abettors with infamy."). Many opponents of dueling struggled to paint the affair of
honor as a modem scourge while also claiming that public opinion-at least the public opinion that
counted-rejected the practice. See, e.g., Low, supra note 39, at 7 ("[l]t would be monstrous
injustice to ascribe my pacific conduct to an unmanly degree of fear, or to brand me with the
opprobrious name of coward. But you will be thus branded.-By whom? Surely not by the
intelligent and virtuous: No, but by the multitude, who do not think correctly, and cannot reason
justly.").
76. BEECHER, supra note 74, at 12 (emphasis added).
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Beecher believed in a connection between the public and private realms;
unlike the duelists, however, Beecher's vision began with private
morality and projected it into the public arena rather than privileging the
public world of appearances.
By the late 1820s, critics of dueling were more numerous, and at
least one prominent pamphleteer had begun to speak explicitly in terms
of public and private as distinct locations of activity, if not as
components of human personality. In a sixty-two-page volume titled
simply Remarks on Duelling and taken from "a course of ethical
Lectures, delivered by the Author to the Cadets, members of the
American, Scientific, and Military Academy," 7 Walter Colton attacked
the notion that personal gunfights translated into public honor.
Describing the initial insult as occurring "within the limits of the
domestic circle," 78 Colton rebuked the duelist for turning personal affairs
into public affrays:
And we are warranted in saying, that in many instances, the wound
which the complainant pretends has been inflicted upon his fair
reputation, would never have been so much as discovered by the
public, but for a determination on the part of the person affected, to
make it an occasion of bringing himself into the public notice. He
cries, there is a wound on my reputation, a blot upon my character, and
begins to unfold himself, till at length a wound and blot are in fact
himself, or
discovered, but whether they have been inflicted by 79
another, is the only question that awakens the least interest.
In Colton's view, the duelist could not be justified in dragging his
messy private altercation before the public eye and then blaming the
public eye for forcing him to the field of honor. For Colton, the duel was
an inappropriate remedy for a personal insult because the duel sought
recompense for interior damage in a highly visible, exterior context.
Painting a picture of an indifferent public yawning at the prospect of yet
another pair of self-aggrandizing code devotees facing each other on the
field, Colton noted, "Every scene in the play is familiar as the features of
a family cur. The actors play for their own sport, and whether they are
behind or before the curtain, is a matter of no consequence.... They are
77.
COLTON, supra note 45, at 3.
78. Id. at 15.
79. Id.; cf WYATT-BROWN, supra note 3, at 360 ("[Tlhe principals might well have been
acting out private dramas of their own and asking the public to bear witness that their inner sense of
worthlessness applied better to the opponent than to themselves. The parties sought to kill personal
anxieties along with the scapegoat who stood ten or twenty paces away.").
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' 80
not of that consequence in the world, which they had supposed.
Rather than providing a means to attain honor and status, the duel
inappropriately demanded civic space in order to validate interpersonal
conflict. Echoing Beecher and Dwight, Colton described the true
gentleman as impervious to public opinion but always able to draw upon
his reserves of moral fiber when called upon to enter the public realm:
"A man of true courage is always cool and deliberate ....From the
conflicting circumstances around him, he retires within himself,-he
an elevation, that quietly
rises upon his collected energies, till he obtains
81
beneath.,
elements
convulsed
the
overlooks
Moreover, in addition to this changing view of how disputes should
be settled, Colton's comments suggest that the view of the underlying
dispute had also altered. The insult to reputation occurred in the
"domestic circle," "behind the curtain," among ordinary people with no
claims on the public attention; for the combatants, the duel was "an
occasion of bringing [themselves] into public notice." Colton's remarks
demonstrate an awareness of a boundary between private and public
spaces, between intimate quarrels and affairs worthy of community
recognition, that earlier commentators had not articulated. Dueling was
beginning to lose its usefulness in the North because it revealed nothing
about individuals' inner character at a time when northerners were
increasingly focused on the role of private morality in a commercial
society. The purpose of the duel was to provide a single, discrete, public
event in which a man would be judged and his reputation assigned based
on his ability to perform a preconstructed social role. This social role
had little meaning for northerners, who increasingly considered
mannered punctiliousness to be the exclusive province of the southern
gentry.
II.
HEYDAY AND DECLINE: 1838 AND AFTER
A.
The Cilley-Graves Affair.
Ten years after Colton's pamphlet came one of the most infamous
duels in American history,82 a meeting uniquely political in that all four
80. COLTON, supra note 45, at 16-17.
81. Id. at 23.
82. Truman counts it as one of the four most noted fatal duels fought in the United States,
along with the Hamilton-Burr, Decatur-Barron, and Broderick-Terry encounters. In all but the
Cilley-Graves duel, pistols were the weapon of choice. See TRUMAN, supra note 2, at 81. On the
Broderick-Terry duel, see infra text accompanying notes 190-92.
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principals and seconds were United States congressmen, uniquely brutal
in that the parties exchanged three rounds of rifle fire before one of them
fell, and uniquely foolhardy to modern-day eyes in that the principals
had no real quarrel with each other.83 Yet the meeting on February 24,
1838, signaled a watershed in the history of dueling in America-not
because it was the first or the last of its kind, but because it contained
within it, in tragic purity, all the refined elements of the duel at its
zenith. By the 1830s, the duel had achieved the stylized form that would
mark its halcyon days in the South, as well as the relentless insistence on
public honor as a sign of personal worth that would restrict it among
northerners to political disputes carried on in the southern latitudes of
the District of Columbia. Moreover, the Cilley-Graves affair made
explicit the role of the duel as a symbol of North-South difference even
as it became the modality by which northerners and southerners settled
their differences with one another. In the decades before the Civil War,
major political disputes increasingly served as the backdrop for duels. In
spite of Lyman Beecher's entreaties thirty-one years earlier, duels
continued to center on political issues for two reasons: politics was still
largely personal, and politics was increasingly associated with the rising
sectional conflict.
1. The Insult.
In addition to its other singularities, the Cilley-Graves duel
originated in a convoluted set of facts. In remarks on the floor of the
House of Representatives responding to Virginia congressman Henry A.
Wise's motion for a select committee to investigate corruption charges
that a New York newspaper had leveled against another member of
Congress, Congressman Jonathan Cilley stated that "he did not think the
charges were entitled to much credit in an American Congress. 84 In
83. Sabine begins his entry for the Cilley-Graves duel thus:
The parties were members of the House of Representatives; the first from Maine, the last
from Kentucky. Among the gentlemen present at the meeting were six other members of
Congress; namely, Messrs. Crittenden and Menefee, of Kentucky; Wise, of Virginia;
Duncan, of Ohio; Bynum, of North Carolina; and Jones, of Wisconsin.
This was a combat under the duello, under a mere point of honor. There was no
difficulty between Messrs. Graves and Cilley, at any time. Even upon the ground, after
an exchange of shots, the latter declared, that he entertained for Mr. Graves "the highest
respect, andmost kindfeelings."
SABINE, supra note 2, at 89.
84. Id. at 92. Sabine's account of the duel comes from the report of the House committee
appointed to investigate the causes of Cilley's death-specifically to determine whether a breach of
the privileges of the House had occurred.
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response, Wise is said to have suggested that such an investigation might
target Cilley himself, muttering, "'But what is the use of bandying words
with a man who won't hold himself personally accountable for his
words?"'' 85 A blatant reference to New Englanders' refusal to bind
themselves to the code of honor, Wise's remark likely touched a nerve
with Cilley and other northern congressmen, who were regularly the
targets of such slights.
Cilley's comments elicited a response from James Watson Webb,
editor of the New York Courier and Enquirer-the anonymous "Spy in
Washington" who had authored the original corruption charges and a
notorious duelist in his own right.8 6 In a letter tendered to Cilley via
Kentucky congressman William J. Graves, Webb demanded that Cilley
explain his remarks on the floor of the House. Cilley refused even to
read the letter, prompting messenger Graves to enter the epistolary fray.
Graves's February 20 letter introduced the third-party dispute that would
prove the subject matter of the duel: whether Cilley had intended to
insult Webb by refusing to accept Webb's letter. Graves put the question
to Cilley:
[Y]ou will please to say whether you did not remark... that the
ground on which you rested your declining to receive the note was
distinctly this: that you could not consent to get yourself into personal
difficulties with conductors of public journals, for what you might
think proper to say in debate upon this floor... and that you did not
rest your objection in our interview
upon any personal objections to
87
Colonel Webb as a gentleman.
Graves thus demanded that Cilley affirmatively state that it was not
because he disputed Webb's status as a gentleman that he had refused
Webb's letter. Furthermore, Graves demanded private retribution for
comments Cilley had made from the floor of Congress in his public,
civic capacity. Yet by inserting himself into an as-yet one-sided debate
and demanding a response from Cilley, Graves had effectively implied
that Webb was in fact not a gentleman; otherwise he would not have
85. STEVENS, supra note 5, at 221.
86. See KIERNAN, supra note 3, at 308; see also infra note 173 (describing Webb's further
adventures); SEITZ, supra note 67, at 283-309 (discussing Webb's 1842 duel with Kentucky
Congressman Thomas F. Marshall and his ensuing indictment and arraignment in New York).
Along with-and often with respect to the same issues as-politicians, many colorful 19th-century
newspaper editors were inveterate duelists. But the two classes of public figures rarely intersected
on the field of honor. See Freeman, supra note 22, at 305 n.58 ("[T]he ambiguous social status of
newspaper editors made them unsuitable dueling partners for politicians and more fitting victims of
legal action or physical violence-in particular, canings.").
87. SABINE, supra note 2, at 93.
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needed Graves to act on his behalf. This irony was apparently lost on
Graves, however.
The conflict escalated when Cilley refused to deny the motive
Graves ascribed to him, reiterating that he had "'declined to receive [the
note] because I chose to be drawn into no controversy with him.' 88 On
February 23, Graves replied with a challenge to Cilley, delivered by
Wise:
"As you have declined accepting a communication which I bore to you
from Colonel Webb, and as, by your note of yesterday, you have
refused to decline on grounds which would exonerate me from all
responsibility growing out of the affair, I am left no other alternative
but to ask that satisfaction which is recognized among gentlemen. My
friend, Henry A. Wise, is8 9authorized by me to make the arrangements
suitable to the occasion."
Passive in motive as well as voice, Graves's note was nevertheless
active in import: he demanded satisfaction from Cilley for Cilley's
supposed insult to Webb. Echoing both Hamilton's words when faced
with Burr's challenge and Hamilton's storied opposition to dueling,
Cilley explained his resolution to a friend: "'Although I know the
sentiment of New England is opposed to dueling, I am sure my people
will be better pleased if I stand the test than disgrace myself by
humiliating concessions."' 90 In spite of the efforts of Beecher, Colton,
and other critics, the dissonance between private values and public
norms still resolved itself in favor of the public.
Exercising the challenged party's prerogative, Cilley proposed
rifles at eighty yards and selected the Anacostia Bridge near
Marlborough, Maryland, for the site of the encounter. 91 Calling the terms
'unusual and objectionable,"' Wise nevertheless agreed on behalf of
88. Id. at 94.
89. Id. at 95.
STEVENS, supra note 5, at 223.
91. Apparently, Cilley was inexperienced with pistols. See id. The additional terms are
interesting:
"[T]he parties ...to hold the rifles horizontally at arm's length, downwards; the rifles to
be cocked and triggers set; the words to be, 'Gentlemen, are you ready?' After which,
neither answering 'No,' the words shall be, in regular succession, 'Fire,-one, two,
three, four.' Neither party shall fire before the word 'fire,' nor after the word 'four.'...
The dress to be ordinary winter clothing, and subject to the examination of both parties.
Each party may have on the ground, besides his second, a surgeon and two other
friends.... Should Mr. Graves not be able to procure a rifle by the time prescribed, time
shall be allowed for that purpose."
SABINE, supra note 2, at 95.
90.
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Graves. Negotiation had failed. The dispute would be settled on the
field.
2. The Meeting.
The parties arrived at the agreed-upon location at about two o'clock
on the afternoon of February 24. After the seconds had marked off the
distance, Cilley and Graves took their positions shortly after three
o'clock and exchanged shots. Both missed. A colloquy ensued among
the principals' friends wherein George Wallace Jones, Cilley's second,
inquired of Wise whether Graves was satisfied. More lawyerly
hairsplitting followed:
Mr. Wise immediately said, "Mr. Jones, these gentlemen have come
here without animosity toward each other; they are fighting merely
upon a point of honor; cannot Mr. Cilley assign some reason for not
receiving at Mr. Graves's hands Colonel Webb's communication, or
make some disclaimer which will relieve Mr. Graves from his
position?" Mr. Jones replied, "While the challenge is impending, Mr.
Cilley can make no explanation." Mr. Wise said, "The exchange of
shots suspends the challenge, and the challenge is suspended 92for
explanation." Mr. Jones thereupon went to Mr. Cilley and returned.
Jones returned with Cilley's reiteration of his original story: Cilley
had declined to receive the note because he did not want to be drawn
into controversy with Webb, and he still would not offer any opinion on
Webb's character as a gentleman. Cilley's supporters "urged that Mr.
Graves should now be satisfied, and that the affair should now terminate,
without requiring from Mr. Cilley any further concession beyond what
he had already made,, 93 but Graves's friends Wise, Crittenden, and
Menefee insisted that the fight continue.
The principals exchanged a second round of shots and missed
again. Graves insisted on another shot; again the friends convened. At
one point, seconds Jones and Wise walked away from the rest of the
group and attempted to string together words that each thought would
mollify his principal without costing the other's honor, but to no avail.
As the parties prepared for the third round of fire, Wise told Jones that if
the shots missed again he would propose shortening the distance "to
92. Id. at 97. Sabine does not mention what was occupying Cilley and Graves during this
exchange.
93. Id. at 98 (internal quotation marks omitted).
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prevent a prolongation of the affair." 94 Jones agreed to entertain the
proposition if the shots missed. But as the two fired together, Graves's
shot found its mark. "Mr. Cilley was shot through the body. He dropped
his rifle, beckoned to one near him, and said to him, 'I am shot,' put both
95
his hands to his wound, fell, and in two or three minutes expired., .
3.
The Aftermath.
Cilley's death caused a tremendous furor around the nation,
especially in the Northeast.96 The congressman's casket lay in state in
the Capitol rotunda beneath John Trumbull's "Surrender of Burgoyne,"
in which Cilley's grandfather, an officer in the Continental army, was
pictured.97 Politicians and leaders gathered to pay their respects; the
justices of the Supreme Court, however, refused to attend.9 8 Assigned to
investigate the events that resulted in Cilley's death, a specially
convened House committee reported that Webb and two of his cronies
had planned to assassinate Cilley if he survived the meeting with
Graves. 99 Somewhat ironically given the complicity of its members in
the affair (or perhaps out of a sense of guilt about that complicity), the
House
report described
dueling as "that custom, the relic of
unenlightened and barbarous ages, which was formerly supposed to be a
94.
95.
96.
97.
Id. at 100.
Id. (internal quotation marks omitted).
See STEVENS, supra note 5, at 226.
See id. at 225.
98.
See HENRY WARE, JR., THE LAW OF HONOR: A DISCOURSE OCCASIONED BY THE RECENT
DUEL INWASHINGTON 18 (Cambridge, Folsom, Wells, & Thurston 1838). Both the House and the
Senate, however, voted unanimously to attend the funeral, determining that "as a testimony of
respect for the memory of the deceased, they will go into mourning, by wearing crape round the left
arm for thirty days." N.Y. MORNING HERALD, Mar. 1, 1838.
99. See SABINE, supra note 2, at 101. The plot was truly diabolical:
Early in the day on which [Cilley] fell, an agreement was entered into between [Webb
and two others], to arm themselves, repair to the room of Mr. Cilley, and force him to
fight Webb with pistols on the spot, or to pledge his word of honor to give Webb a
meeting before Mr. Graves; and if Mr. Cilley would do neither, to shatter his right
arm.... Before arriving there, it was agreed between Webb, Jackson, and Morell, that
Webb should approach Mr. Cilley, claim the quarrel, insist on fighting him, and assure
him if he aimed his rifle at Mr. Graves, he [Webb] would shoot him [Mr. Cilley] on the
spot. It was supposed by them that Mr. Graves, or Mr. Wise, or some of the party, would
raise a weapon at Webb, whereupon it was agreed that Webb should instantly shoot Mr.
Cilley, and that they should defend themselves in the best way they could.
Id. at 100. Webb's determination to avenge himself on Cilley-and Graves's virtual irrelevance to
the main quarrel-is obvious here, given the possibility that events might conspire to have Graves
firing on Webb.
The House committee recommended expulsion for Graves and censure for Wise and
Jones, leaving Webb to "'the chastisement of the course of law, and of public opinion."' Id. at 108.
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proof of some degree of physical courage, but is, in fact, a00 signal
monument of the want of the higher attribute of moral courage."'
Unlike the slain Hamilton, who was universally venerated as a
martyr, Cilley received a measure of criticism for his failure to draw on
the reserves of "moral courage" that every virtuous northerner was
expected to possess. By agreeing to Graves's challenge, Cilley had
capitulated to the irrational forces of appearance, "which can furnish no
criterion for truth, justice or honor," rather than asserting the
preeminence of inner character as a guide to public identity. After a
promising start, the new idea of the Christian gentleman had stalled in
the face of the overwhelming need to prove both masculinity and
northern competence on the field of honor.
Nevertheless, Cilley's participation in the duel disqualified him
neither from sympathy nor from victimhood. On the contrary, the CilleyGraves affair fit perfectly into the governing narrative of the duel that
had endured since the notorious Weehawken encounter: the unwilling
opponent of dueling so hounded by calumny that he is ultimately goaded
into a meeting against his better judgment, a meeting at which he falls to
the ground and dies with words of forgiveness on his lips. 0 1 The
practice of dueling seemed an unavoidable evil, a symptom of societal
disease that could be treated but never cured. After all, if noble Cilley
believed himself compelled to duel, who could argue that to duel was
merely to submit to base vanity?
100. Id. at 107 (emphasis added).
101. Id.at 103 (noting that even after the first round of fire, Cilley "positively avowed.... that
he entertained for [Graves] the highest respect and the most kind feelings"); see also The
Bladensburg Dueling Ground, supra note 68, at 480 (describing the scene after both Barron and
Decatur had been wounded-Decatur mortally: "The interview was inexpressibly affecting,
reminding one... 'of the closing scene of a tragedy-Hamlet and Laertes.' Barron proposed that
they should make friends before they met in heaven, for he supposed they should both die
immediately.").
Both these narratives comported with "A Traveller's" instructions to the duelist who
found himself wounded:
"I cannot impress upon an individual too strongly the propriety of remaining perfectly
calm and collected when hit; he must not allow himself to be alarmed or confused; but
summoning up all his resolution, treat the matter coolly; and, if he dies, go off with as
good a grace as possible."
BALDICK, supra note 5, at 48.
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The Response.
Newspapers, abundant and vociferous commentators on all events
102
of nineteenth-century political life with no pretense to objectivity,
captured the spectrum of responses to the Cilley-Graves duel. While it is
entirely too easy to conclude that the South remained indifferent to
Cilley's death, 10 3 the response in the North-particularly New
England-was both more dramatic and more willing to cast the
encounter as part of a larger social phenomenon of political squabbles
leading to the dueling ground. On their editorial pages,'0 4 newspapers
reported the facts of the duel as they became known, bruiting details of
the events that had led to the meeting, speculating about the fates of
Graves, Webb, and the other parties, and demanding a wide array of
responses to the events.
Manhattan papers had the most to say about the duel, largely
because the activities of one of their own-and his role in local political
conflicts-were widely acknowledged to have precipitated the
encounter. "The public mind is in a state of agony," observed the New
York Morning Herald in one of its initial commentaries on the meeting,
headed "Horrible Doings."10 5 Taking for granted the malevolence of
Webb, "the instigator of this most foul and inhuman transaction,"' 0 6 the
author noted that Representative Alexander Duncan of Ohio (one of
Cilley's friends at the dueling ground) had also been involved in the
House debate that had caused Webb such offense, but that "Webb
selected... the late member from Maine, knowing that he, being from
the east, might hesitate about fighting."' 0 7 Combining a general distaste
102. See generally J. CUTLER ANDREWS, THE NORTH REPORTS THE CIVIL WAR (1955)
(discussing the role of the northern press during the war); J. CUTLER ANDREWS, THE SOUTH
REPORTS THE CIVIL WAR (1970) (discussing same with respect to the southern press); CARL R.
OSTHAUS, PARTISANS OF THE SOUTHERN PRESS: EDITORIAL SPOKESMEN OF THE NINETEENTH
CENTURY (1994) (same).
103. But see STEVENS, supra note 5, at 226 (reporting a tremendous outcry in the North and
commenting that "[n]one of this sentiment, however, was echoed south of the Mason-Dixon line").
104. Nineteenth-century newspapers comprised advertisements, reprints of other papers'
reports, serialized fictional stories, and a substantial amount of what we would term editorial
material. Most papers were four pages long and devoted a substantial percentage of their columns to
tiny, classified-style advertisements. Additionally, no clear line separated editorials from articles:
the latter almost always blurred into the former, with considerable attention to lauding the particular
paper's political party and attacking the opponents and their paper.
105. N.Y. MORNING HERALD, Feb. 27, 1838.
106. Id.
107.
Id.
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for dueling with a more specific attack on Webb's negative influence on
New York politics, the Heraldcommented:
We scarcely know in what terms to characterize this horrible
effusion, in which a deliberate propensity for shedding human blood is
characterized by the names of "chivalry" and "honor."...
•.. The Wall street press has long been corrupt and rotten-it is now
reeking in human blood. Let the people of this city meet at once, and
ascertain if any moral principle exists in our social system. 108
In the days following the duel, the Herald reported some
ambivalence among New Yorkers about Cilley's role as both victim and
perpetrator. After observing that "[t]he public mind is sick-a feeling of
loathing has taken possession of it towards all the parties concerned in
the awful tragedy,"10 9 the editor quoted the New York Sun's
characterization of Cilley as a "young, talented and promising young
man, cut down in the prime of his life, while six or seven scoundrels
were present aiding and abetting." 1 0 This view stood in sharp distinction
to that of the Express, which the editor quoted as saying, "Mr. Cilly
[sic], dead as he is, we must say was guilty of but a quibble-because he
wanted the courage 'to resist, as well he could, considering the New
England District he represents, the absurd and criminal practice of
duelling."'1
After three weeks, however, the focus of popular
commentary shifted such that the Herald contained only a single item
related to the encounter, asking, "The abhorrence of the public sentiment
against the practice of duelling, increases and widens as the news of the
late duel travels over the ' land
....Ought not the idea of "gentleman" to
12
altogether?"'
reformed
be
By invoking the word "gentleman," which as a contested term had
served as the gravamen of this particular duel and as an overarching
ideal spurred countless other men to the field of honor, the Herald
highlighted the traditional congruence between expectations of personal
and public behavior and asked whether that congruence and its
component parts should be reconsidered. The newspaper's call for a
reexamination of the idea of "gentleman" suggested that this congruence
lived on: the way to curtail the practice of dueling was to excise it from
108. Id.
109. N.Y. MORNING HERALD, Feb. 28, 1838.
110. Id.
111.
Id.
112. N.Y. MORNING HERALD, Mar. 27, 1838.
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the gentleman's code of behavior while continuing to demand that
individuals in society comport themselves according to a revised version
of the code. A newly sanitized gentlemanliness with dueling defined out
of it would now govern politicians' disputes. Increasingly, the personal
norms that mattered were independent of the public realm rather than
derived from it.
Yet the Herald's comments also suggested a degree of uncertainty
about precisely which parts of the gentleman's code were to be salvaged
and which eliminated. Boston's Daily Evening Transcript appeared to
share this uncertainty in an item reprinted from that city's Journal of
Commerce: "It did not occur to us that there was any thing in [Cilley's]
remarks which need disturb the nerves of the most sensitive man,
it seems we miscalculated the
concious [sic] of his own integrity-but
13
'honor.""
called
thing
the
of
nicety
Coupled with this awareness of the need to adapt the code for
changing times was a growing dissonance between North and South, as
the following passage from the Evening Transcriptsuggests:
We have heard the frequency of duels in the South instanced as
evidence of the superior courage of the people's nicer sense of honor
and decorum. The position is false, and the history of the country
proves it. Massachusetts gave the largest quota of revolutionary
soldiers; and it may be conjectured that the bravest spirits at Bunker
who reserved their fire
Hill, were steady, pious church-goers-those
1 14
for their enemies and not for their friends.
Proponents of the moral courage notion clearly felt some anxiety
about the ease with which their adversaries could paint the idea as a
mere front for cowardice and a lack of masculine vigor. To reject the
code of honor was to reject the code of elite masculinity. Thus, in
addition to the obvious geographical conflict displayed in the persons of
the principals (Cilley from Maine, Graves from Kentucky), the
congressmen's duel conjured up deeper anxieties about regional friction
insofar as its cause could be traced to a fundamental dispute about what
the category of "gentleman" meant-and what it required of those who
belonged to it.
Echoes of the Cilley-Graves duel also reverberated at the highest
levels of government. Essentially, the disagreement between Cilley and
Graves turned on whether Cilley could be called to the field of honor to
answer personally for comments he had uttered about Webb, who was
113.
114.
BOSTON DAILY EVENING TRANSCRIPT, Feb. 28, 1838.
BOSTON DAILY EVENING TRANSCRIPT, Mar. 6, 1838.
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not a politician, on the floor of the House in his official capacity. In this
way, the dispute was about the relationship between those inside
Congress and those outside. The members of the House committee
investigating the duel perceived this, for they took as their mission "'to
inquire whether there has been ...a breach of the privileges of the
House." 15 As the principals' correspondence in the days leading up to
the duel demonstrates, Cilley vehemently opposed the notion that he
owed any sort of apology or explanation to Webb.1 16 In Cilley's view,
debate in Congress was confined to Congress; therefore, it was
inappropriate to demand further explanation outside the halls of the
Capitol-let alone to demand the satisfaction of a private gentleman on
the dueling ground. Thus his terse, repetitive responses to Graves's
increasingly insistent letters: Cilley refused to acknowledge a private
remedy for statements made in the course of public legislative debate.
By refusing to elaborate on his comments, Cilley insisted that they
be left in the public realm, where they had been uttered. In so doing, he
refused to submit to Graves's belief that personal letters--even between
gentlemen-constituted
an appropriate forum for continuing
congressional debate. When Cilley rejected Webb's letter, he refused
Webb entry into the sacred citadel of political power. In this regard at
least, Webb was partly correct in claiming that Cilley had shown him
disrespect; that disrespect, however, had more to do with the fact that
Webb was an outsider to the special zone of politics than his inferior
status as a newspaperman. When Cilley rejected Graves's demands for
explanation, he refused Graves's entreaties to debase the citadel into a
forum for private arguments. Reminiscent of Lyman Beecher's vision of
politics as a realm apart from the squalidly personal arena of everyday
insult and bloody code, Cilley's actions bespoke a deep belief in the
115. SABINE, supranote 2, at 91.
116. The following exchange, two days before the duel, is especially illustrative of Cilley's
intractability on this point:
"[Mr. Cilley],-Your note of yesterday, in reply to mine of that date, is inexplicit,
unsatisfactory, and insufficient. Among other things in this, that, in your declining to
receive Colonel Webb's communication, it does not disclaim any exception to him
personally as a gentleman. I have, therefore, to inquire whether you declined to receive
his communication on the ground of any personal exception to him as a gentleman or a
man of honor? A categorical answer is expected."
"[Mr. Graves],-Your note of this date has just been placed in my hands. I regret that
mine of yesterday was unsatisfactory to you; but I cannot admit the righton your part to
propound the question to which you ask a categoricalanswer, and therefore decline any
further response to it."
Id. at 94 (third emphasis added). In response, Graves issued his challenge.
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separateness of the political from the merely personal, the high civic
from the petty individual. His comments on the floor of the House stood
on their own and became something apart from the person of Jonathan
Cilley, insulated as they were by the location in which they had been
uttered. Consequently, when his fellow congressman Graves insisted that
Cilley enter into the quintessentially private discourse of an exchange of
letters in order to "explain" these comments, Cilley bridled, replying that
part to propound the question to
he could not "admit the right on your
' 17
answer."
categorical
a
ask
you
which
In this way, the events leading up to the Cilley-Graves meeting
stood in sharp distinction to those preceding the encounter between
Hamilton and Burr. No single comment-much less one pronounced on
the floor of Congress-had sparked the Burr-Hamilton duel; indeed, the
precise events leading up to that famous meeting remain somewhat
shrouded in obscurity, having certainly been fueled by years of
antagonism between the two men. 1 8 Moreover, Hamilton did-not choose
a rarefied political space in which to utter his allegedly incendiary
statements about Burr. On the contrary, the long-lived controversy
between Hamilton and Burr played itself out in the pages of partisan
newspapers and pamphlets-the wide-open arenas of a politics of
personality.' 19
Unlike the Cilley-Graves duel, the Burr-Hamilton affair was not
about the correct contours and location of political debate. Both
principals in the 1804 meeting took for granted that political disputes
between gentlemen were best settled by resort to the same group norms
that settled personal disputes. By 1.838, however, that consensus among
gentlemen had deteriorated to such an extent that Cilley could argue that
neither a private exchange of letters nor a semi-public exchange of
gunfire was a suitable forum for parsing congressional debate-and,
indeed, that no suitable forum existed outside the demarcated political
space of the Capitol. Seen in the light of the burgeoning sectional crisis,
117. Id.
118. William P. Van Ness, Account of the Events of June 18, 1804, in INTERVIEW IN
WEEHAWKEN, supra note 4, at 41 ("Upon my arrival [Burr] observed that it had of late been
frequently stated to him that [General] Hamilton had at different times and upon various occasions
used language and expressed opinions highly injurious to his reputation .... ).
119. At least one scholar has suggested that late-twentieth-century American politicians have
returned to a politics of personality. See, e.g., Robert N. Bellah, The Meaning of Reputation in
American Society, 74 CAL. L. REV. 743, 747 (1986) (noting that "a politics of personality is
replacing a politics of reputation"). I am not convinced that a politics of personality and a politics of
reputation are necessarily mutually exclusive, at least with respect to the era of the Burr-Hamilton
duel.
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Cilley's initial refusal to adhere to the code fueled the notion that
northerners (especially New Englanders) did not duel. The conclusion
that followed from this notion depended on the observer's particular
latitudinal location. To northerners, it was further proof of the
superiority and advancement of northern civilization; to southerners, it
was additional evidence that southerners were the only true gentlemen.
Insofar as North and South had begun to disengage from each other,
each coming to follow its own social trajectory, both were right. Yet
ultimately Cilley did duel, earlier refusals to traffic in base, scripted
honor notwithstanding. Faced with the challenge, there was little else for
him to do. Nevertheless, the terms with which he postponed his fatal trip
to the releaguer stood as a testament to the emerging northern belief in
the divide between the official, civic speech of the gentleman politician
and the personal, egotistical speech acts of the gentleman duelist.
Contemporary commentators (most of them ministers) were quick
to seize on the uniquely political nature of the Cilley-Graves encounter,
exhorting the American people to rise up and reclaim their government
from immorality. In an address titled "The Willing Homicide Unfit to Be
a Legislator," M.A. De Wolfe Howe, rector of St. James's Church in
Roxbury, Massachusetts, cast recent events darkly: "The fact that they
did the deed is not so revolting, as that it could be done. Their personal
presence in the hall of legislation, is not the foulest blemish upon its
purity, but the astounding fact, that they had the assurance of a
reception, which induced them to return to it. .... ,,120 Following Lyman
Beecher's thirty-one-year-old advice, the horrified commentators
between
implored their audiences to open their eyes to the connection
121
politicians' morality and their ability to serve the public.
Needless to say, the divines rejected the idea that the code of honor
constituted a legitimate moral system. Lambasting worldly honor as "a
one speaker-anticipating
forms,"' 2 2
multitude of fictitious
postmodernism-went on to characterize it as a mere simulacrum of
virtue:
120. HOWE, supranote 8, at 18-19, 20.
121.
See, e.g., JAMES M. MACDONALD, A MOURNING LAND: A SERMON 13 (New London,
Ebenezer Williams 1838) ("It needs but little reflection to perceive that a pure morality, in our
rulers, is indissolubly connected with its prevalence in the country at large."); SPRAGUE, supranote
5, at 7-8 ("[T]here is an indirect influence exerted by rulers scarcely less important than that to
which I have already adverted-I refer to the influence of their example. What is said of the church
may be applied to them-they are 'a city set upon an hill."').
122.
WARE, supra note 98, at 8.
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Thus Honor comes to bear the same relation to Virtue, that politeness
does to kindness; it is its representative; it keeps up the form and
pretension when the principal is absent; and, for all the ordinary
purposes of the superficial social system of the world, it is accounted
quite as good as that which it stands for....
This then is the first objectionable trait in the world's law of Honor, as
a rule of life; it is deceptive and superficial;it is a thing of appearances
only, and not a reality.
In other words, the "world's law of Honor" seemed to northern
observers a mere sham honor, a public display of formalities rigged up
to conceal an emptiness where genuine individual honor and morality
should have been. Refusing to allow this perversion to stand in for the
totality of personal honor, mid-century critics of the code insisted that
the moral courage vision supplied the needed correction.
Along with injunctions to the populace came considerable outrage
at the complicity of so many government officials in the murder of one
of their number. Cilley drew a substantial share of criticism as well as
sympathy, for as a New Englander he was expected to resist the call of
the field of honor. 124 As a result, his acceptance of the challenge seemed
a betrayal of his region. "That a man, educated in the land of the
Pilgrims, and representing, in the national council, a portion of their
sons, should so unhesitatingly, become a party in a mortal combat,
even among us, is
sufficiently evinces that the tone of moral feeling,
125
fearfully depressed," lamented one commentator.
Most appalling to these observers, though, was the fact that the
hallowed precincts of the Capitol had served as the site of the disputeand that the parties' political prominence might be invoked to transform
vile murder into justified retribution 26 Henry Ware, Jr. was aghast:
123.
Id. at 9.
124. An 1883 essay from Harper's"Easy Chair" series described widespread revulsion at the
congressmen's behavior:
This event occurred forty-five years ago, but the outcry with which it was received even
at that time-one of the newspaper moralists lapsing into rhyme as he deplored the cruel
custom which led excellent men to the fatal field, "where Cilleys meet their Graves"-and the practical disappearance of Mr. Graves from public life, showed how deep and
strong was the public condemnation, and how radically the general view of the duel was
changed.
GEORGE WILLIAM CURTIS, ARS RECTE VIVENDI: BEING ESSAYS CONTRIBUTED TO "THE EASY
CaAIR" 89-90 (New York, Harper & Bros. 1898).
125. MACDONALD, supra note 121, at 5.
126. Compare Britain's Wimbledon Common Affair-also in 1838-in which principal and
second faced capital convictions for their roles in a duel arising out of a carriage collision. Although
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NINETEENTH-CENTUR YAMERICAN DUELING
[I]f two men in higher life, taking deliberate and formal counsel of
other men, all of them under oath to guardthe welfare of the republic,
go forth at mid-day to commit the foul offence, and one of them dies
upon the spot,-the others return in safety to their seats as the
guardians of the public weal, and the highest authorities of the
to the remains of him who died in the act of
Republic pay honors
127
violating its laws.
Unable to reconcile the base and bloody doings on the field with the
exalted duty of Congress, Ware's language suggests that he envisioned
the duel as a particularly spatial phenomenon, wheedling the parties out
of their rational higher life and into the blazing midday sun of vice and
illegality. The congressmen had to "go forth" in order to engage in the
affair of honor, for their usual theater of operation gave no quarter to this
sort of activity. Increasingly, northern observers saw dueling as an
egotistical ritual rather than a natural result of politics' inseparability
from its participants' private lives.
This is not to suggest, however, that dueling's critics thought the
political realm should be an autonomous garrison sealed off from any
conception of personal morality. While much of the mid-century
criticism of dueling took for granted a divide between the personal and
political spheres, commentators struggled to articulate precisely how the
two realms ought to interact. By adopting the Beecheresque view of a
civic sphere separate from the banalities of the merely personal, these
reformers also inherited the resulting conundrum of wanting more
virtuous, more responsible politicians as well as politicians who did not
feel their public actions to be controlled by private group norms. The
reformers demanded ethics in their political figures, but not the ethics of
the sentences were ultimately commuted to twelve months' imprisonment, "much was made of the
fact that, 'The parties concerned in this affair, though aping the barbarous code of refined honour,
could apparently claim only very doubtful gentility."' Simpson, supra note 20, at 105 (quoting R. v.
Young and Webber (1838)). In addition to occurring in the same year as the Cilley-Graves duel, the
Affair became famous as "one of the few ... in which a capital conviction was obtained in a fatal
duel conducted fairly according to the code of honor." Id.
127. WARE, supra note 98, at 18-19 (footnote omitted). The visual motif of Cilley and Graves
literally leaving the Capitol to aim rifles at each other recurred in other public addresses, often as a
means of dramatizing the incomprehensibility of their behavior:
An individual in the heat of public debate dropped a word that fell harshly upon the ear
of some who heard it; and that provoked the resentment of some who read it. And the
strange result is, that a man who has received no injury goes to a man who has inflicted
none upon him, and makes the foolish and desperate proposal, that they go out into a bye
place, and stand up and face each other with the weapons of death, and each do his best
to send the other stained with the guilt of murder, into eternity.
SPRAGUE, supra note 5, at 13.
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the code duello, which they saw as an artificial subset of true morality.
Senate chaplain Henry Slicer captured this tension in the title of a July
1838 address delivered at the Capitol: "That Which Is Morally Wrong,
Can Never Be Politically Right." '28 Slicer and others viewed the code
duello as a corruption rather than a manifestation of personal morality.
This corruption, they believed, had taken over political debate.
Unlike the Burr-Hamilton duel, in which political animosity flowed
smoothly into private letters and then onto the dueling field, the CilleyGraves encounter involved a jerky transition between the dignified space
of political debate and the anomic space of the supposedly instinctual
code. An uneven attempt to carry out the old maneuver of translating
public stature into the terms of public honor, the congressmen's meeting
ultimately demonstrated the degree to which the gentleman's code no
longer controlled events beyond the narrowing ambit of a certain vision
of society. The gentleman who politicked and dueled had begun to cede
the public forum to the politician who conceived of himself as a public
servant. Instead of a set of universal rules with a colorable claim to
representing existing behavioral norms, the code duello had become-at
least to northerners like Cilley-an awkward and archaic template that
was utterly alien to political life. Yet it was in political life that
northerners came most often into contact with the duel, for as the
nineteenth century unfolded,1 29challenges seemed to follow wherever
sectional disputes cropped up.
128. HENRY SLICER, THAT WHICH IS MORALLY WRONG, CAN NEVER BE POLITICALLY RIGHT:
A DISCOURSE IN WHICH IS CONSIDERED THE HISTORY, CHARACTER, CAUSES, AND CONSEQUENCES
OF DUELS, WITH THE MEANS OF PREVENTION (Washington, 1838).
129. The 1856 caning of Massachusetts senator Charles Sumner by South Carolina
congressman Preston Brooks was not a formal duel, but it nevertheless resonated with contemporary
views of the code of honor. The attack followed an anti-slavery speech by Sumner; the blows that
Brooks delivered when he surprised Sumner at his desk in Congress nearly killed Sumner. See
KIERNAN, supra note 3, at 310. In both North and South, the incident became a rallying point for
sectional sentiment. Brooks's choice of weapon sent a clear message that he considered Sumner to
be an inferior, for caning was generally seen as a way of dealing with those who did not merit a
challenge according to the code of honor. Cf Freeman, supra note 22, at 305 n.58 (discussing the
prevalence of canings in disputes between politicians and newspaper editors). Many southemers
applauded Brooks's action, sending him gold-handled canes and horsewhips as tokens of their
approval. See STEVENS, supra note 5, at 104.
But that was not the end of the story. After Brooks declined a challenge from
Massachusetts's other senator, one of its congressmen, Anson Burlingame, denounced Brooks and
received a challenge in response. Accepting the challenge, Burlingame named a Canadian hotel
across Niagara Falls as the meeting place. Brooks, however, failed to make the trip north because he
feared he would be lynched while crossing northern territory; consequently, the duel never took
place. Id. at 105-06.
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B. SectionalDifferences: Dueling North and South at Mid-Century and
Beyond.
By mid-century, the practice of dueling had taken on new
significance as both a metaphorical and an actual site of North-South
conflict. Each region had developed its own attitudes toward dueling
based on its particular conception of the role of individual honor in
society. Northerners increasingly insisted on a new conception of the
relationship between the public and the private realms, while southerners
reasserted the'supremacy of publicly performed honor. Yet when
representatives of the regions met in Congress or elsewhere, the duel
carried another significance apart from its meaning in either region:
insurmountable regional difference. As a symbol of a particular
historical and temporal context, the duel came to be seen by both regions
as a distinctly political act that replicated on an individual scale the
larger national conflict beginning to surge around them.
1. The North.
Although most dueling activity in the North had ceased by the
middle of the nineteenth century,130 a few notable encounters kept the
practice alive above the Mason-Dixon line well into the 1840s.
According to contemporary reports, most of these meetings were
concentrated south of New England, although Lorenzo Sabine's
comprehensive list of pre-1855 duels includes an 1853 challenge issued
in Boston that never reached fruition due to the intervention of civil
authorities.' 3 1 Other famous encounters included a fatal 1830 duel
between two doctors in Philadelphia; 132 a fatal 1837 meeting in
130.
BALDICK, supra note 5, at 134; KIERNAN, supra note 3, at 309; STEVENS, supra note 5, at
73; see also AYERS, supra note 3, at 15 ("For a few decades, Northerners as well as Southerners
fought on the field of honor, but by 1830 dueling and the South had become virtually
synonymous.").
131. Sabine gives the following account of the dispute between Barnard S.Treanor and Patrick
O'Donahoe:
A public dinner was given at Faneuil Hall ...in honor of the birthday of Thomas Francis
Meagher, an Irish exile of some note. Treanor was president of the day; O'Donahoe,
another exile who had recently escaped from Van Diemen's Land [Tasmania], was a
guest. At table, the course of Treanor gave O'Donahoe offence, which the latter,
immediately after the company separated, made known in a written communication.
Treanor thereupon, it appears, demanded a withdrawal of the letter, an apology for its
contents, or a hostile meeting. He obtained no satisfactory reply to his demand, and a
formal challenge followed. Legal proceedings against the parties put an end to the affair.
SABINE, supra note 2, at 298.
132. See STEINMETZ, supra note 2, at 303 (describing the Smith-Jeffries duel).
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133
Brownsville, Pennsylvania over an insulting mark in a hotel register;
and a nonfatal 1842 meeting in Wilmington, Delaware between James
Watson Webb (of Cilley-Graves fame) and Kentucky congressman
Thomas F. Marshall, which ended in New York's first prosecution for
dueling.1 34 Below the Mason-Dixon line but still arguably in the
North, 135 Messrs. Cocheran and May met in 1844 near a Washington
hotel to settle a dispute over a dance the evening before, resulting in
Cocheran's death.1 36 And as late as 1877, the Maryland-Delaware line
served as the setting for a nonfatal meeting between New Yorkers James
Gordon Bennett, Jr. (son of the editor of the New York Herald) and
Frederick May (a different Mr. May from Cocheran's adversary) over
Bennett's "unbecoming
conduct" toward his fiancee, who happened to
137
be May's sister.
Clearly, earlier commentators who had boasted that the duel was
unknown in the nineteenth-century North 138 were either mistaken or
excessively optimistic. The precise year-or even decade-of the last
affair of honor to take place either in the North or between northerners
remains shrouded in obscurity. Nevertheless, it is safe to say that by the
middle of the nineteenth century the northern duel had become
something of an anomaly, in contrast to the South's appropriation at that
time of the duel as a badge of regional distinctiveness.139 This trend
133. See id. at 305 (describing the Anderson-Jones duel).
134. See SEITZ, supra note 67, at 283-308. Webb, editor of the New York Courier and
Enquirer and a leader of the Whig party, was prosecuted and convicted under a New York statute
that made it a crime for citizens to leave the state to take part in a duel. He was immediately
pardoned. See id. at 306-08. For further discussion of the Webb-Marshall duel, see infra text
accompanying notes 172-173.
135. But see STEVENS, supra note 5, at 73-74 (arguing that Washington resembled the South
more than the North in the high incidence of dueling).
136. See STEINMETZ, supra note 2, at 311-12.
137. SEITZ, supra note 67, at 30. But see TRUMAN, supra note 2, at 333 (giving date of duel as
1876). Truman lists additional mid-century northern duels: Gray-Pope in Indiana, 1849; StoweTownly in New Jersey, 1852; Snowden-Ready in Pennsylvania, 1854; and BreckinridgeLeavenworth at Niagara Falls, 1855. See id. at 388-90.
138. See, e.g., BEASLEY, supra note 39, at 24 ("[H]ow do our fellow-citizens of the Eastern
states, save themselves from the foul imputation [of cowardice]? They are no duellists .... ");
BEECHER, supra note 74, at 31 ("[W]hy does the crime shrink before the stem justice of NewEngland, and rear its guilty head in New-York, and stalk with bolder front as you pass onward to the
south."); SPRAGUE, supra note 5, at 14 ("[The practice of duelling has disappeared almost entirely
from the part of the country in which our lot is cast [Albany] .... "); see also WYATT-BROWN,
supranote 3, at 20 ("The Rev. Lyman Beecher's assault on dueling after Alexander Hamilton's fatal
encounter with Aaron Burr met a widespread popular response. The custom, which was based on
the ethic of honor, became exceedingly rare thereafter in the free states.").
139. See infra Section II.B.2.
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Britons were also shedding the
accorded with developments abroad, for
1 40
time.
this
at
honor
of
duel and the code
But why did the practice of dueling cease in the North? Just beneath
the surface of this question lie two vital and related questions: (1) why
did the practice of dueling last as long as it did in the North?; and (2)
why did it end in the North before the South? As all these questions
suggest, by mid-century the concept of the northern duel (or, slightly
different, the duel between northerners) had separated completely from
that of the southern duel. No longer could one invoke the code of honor
without a certain degree of self-consciousness about the meaning of that
code in one's particular societal and regional context.
As the North underwent massive industrialization and urbanization
and moved away from the traditional agrarian mode of social
organization,' 41 the duel became less appropriate as a means of settling
disputes for the simple reason that the old idea of gentlemanliness had
ceased to serve as the standard by which behavior was measured in
every arena of human activity. In a commercial society, factors such as
honesty, creditworthiness, and success in business simply mattered more
than did sensitivity to insult or the ability to pen a well-worded
challenge. To use Edward Ayers' terminology, mid-century northern
culture rejected honor, "the overweening concern with the opinions of
others," in favor of dignity-"the conviction that each individual at birth
possessed an intrinsic value at least theoretically equal to that of every
other person."'' 42 Intimately connected with the expansion of capitalism,
140. See STEINMETZ, supra note 2, at 336-79. Steinmetz distinguishes between the last duel
between Englishmen in England, which took place in 1845, and the last duel in England, which was
between two Frenchmen in 1852. The last duel fought by a British subject, meanwhile, occurred in
France in 1862. Writing in 1868, the Englishman Steinmetz made no pretense of hiding his disdain
for the French and their insistence on the rituals of honor: "[I]f Englishmen will go and mix with
Frenchmen in France, and adopt their mode of 'envisaging' matters, they had better take my advice
and go thoroughly prepared with both weapons-sword and pistol-and ponder over very
attentively all that I have expounded ..."Id. at 379. Steinmetz's American contemporaries did not
fare much better, as the following histrionic account demonstrates:
In the hotels at Washington and elsewhere, you may see the marks of bullets on the
walls, shots that missed, fortunately, or that went through a man, leaving him dead on the
floor. The barman at hotels is always prepared. There is a ready revolver on the shelf
behind him.... In the street men "exchange" revolver shots occasionally; and in the
wild forests they track each other like game or "varmint." Nevertheless, a man, taking
care to be reasonable, may pass through the States most comfortably.
Id. at 298-99.
141.
See generally CHARLES SELLERS, THE MARKET REVOLUTION: JACKSONIAN AMERICA,
1815-1846 (1991); Herbert G. Gutman, Work, Culture, and Society in Industrializing America,
1815-1919,78 AM. HIST. REv. 531 (1973).
142. AYERS, supra note 3, at 19 (footnote omitted).
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dignity's insistence on the value of the individual "grew up
simultaneously with the new ideals of character, of self-control, of
discipline, of delayed gratification that have come to be the hallmark of
the bourgeoisie."' 143 With these changes came a new interest in the
internal and the nonpublic, those areas of life that operated outside the
realm of the market as well as outside the comprehension of a public
code of conduct.
The practice of dueling lasted as long as it did in the North because
while it lasted there was no reason for it to cease. While this sounds like
a neatly circular nonexplanation, in fact it goes to the heart of the
meaning of the duel in the mid-1800s, and to the modem observer's
unconscious acceptance of that meaning. We marvel at the longevity of
dueling in the North because we have been accustomed to viewing the
duel as something particularly southern, another link between the status
society of the Old South and the medieval world of chivalry and Knights
Templar. 144 Yet to marvel is to forget to look behind the phenomenon to
its motivation, and instead to take the actions of historical persons as
wholly unmediated expressions of their essential being, as if olden-days
people were too naive to have figured out the difference between
behaving and performing.
The American duel was no more a direct descendant of the age of
chivalry than Sir Walter Scott was a historian. On the contrary, both
were quintessential products of the nineteenth century, as were the
tropes of Cavalier and Roundhead that were deployed in order to explain
the supposedly fundamental differences between northerner and
southerner. 145 We twenty-first-century observers put the question as
"Why did northerners duel as long as they did?" because we cannot
make sense of northern dueling. We cannot make sense of northern
dueling because we have received from history a definition of dueling as
distinctively southern. The duel fits with a stereotyped vision of the
South as romantic and courtly but not with the complementary vision of
the North as rational and market-driven. Consequently, we wonder why
southerners ever stopped dueling, and why northerners ever started in
143. Id. at 24.
144. See, e.g., Webb, supra note 5, at 66 ("Particularly in the South people became obsessed
with notions of chivalric derring-do, thrown-down gauntlets... and all the attendant claptrap.").
145. See, e.g., SABINE, supra note 2, at 42 ("The Roundheads of England, from whom we
[northerners] are descended, could justly plead religious scruples in answer to cartels from the
Cavaliers, for they conformed to no customs, indulged in no fashions, inconsistent with an austere,
with a self-denying faith."); see also TAYLOR, supra note 7, at 15 ("The Yankee was a direct
descendant of the Puritan Roundhead and the Southern gentleman of the English Cavalier, and the
difference between the two was at least partly a matter of blood.").
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NINETEENTH-CENTURY AMERICAN DUELING
the first place. In so wondering, however, we forget that these
stereotypes emerged from the same historical moment that witnessed a
documentable gap between the frequency of northern and southern
dueling. They therefore cannot be used to explain the causes of that gap.
Another factor in the duel's endurance above the Mason-Dixon line
was the preeminence of the political duel as the modal northern affair of
honor. Besides the encounters listed above, 146 which achieved renown
precisely because their causes were so petty and their effects so extreme,
each of the major duels between northerners could be described as
political in nature: Burr-Hamilton, Barron-Decatur, and Cilley-Graves.
As the Cilley-Graves affair demonstrated, by the late 1830s the sectional
crisis had begun to dominate political discussion, rendering political
dispute equivalent to sectional dispute. 147 Thus, even as Lyman Beecher
envisioned politics as a realm separate from merely personal quarrelsand even as Jonathan Cilley struggled to compel his adversaries to
accept this new vision-politics became the terrain on which northerners
struggled with southerners as synecdoches of North struggling with
South.
Although the Cilley-Graves encounter was not explicitly about the
sectional crisis, sectional difference lay at the heart of the meeting and
the horror it provoked. Quite simply, no one expected that a New
Englander would accept a call to the field of honor. Moreover, Cilley's
dogged attempts to convince Graves of the inappropriateness of personal
remedies for political remarks-and Graves's equally dogged refusal to
acknowledge this point-illustrate the nascent northern desire to
reconceptualize the political arena as insulated from such things as
personal affronts and private codes. Southerners, however, refused to
allow the code of honor to be shut away in a small drawer of
anachronisms remote from the most vital debates of the day.
Dueling ceased in the North because, to put it bluntly, northerners
resembled Jonathan Cilley more than they resembled William Graves.
By the middle of the nineteenth century, northerners no longer believed
that the code of honor provided a single universally applicable norm of
gentlemanly conduct. Instead of viewing society as an aggregation of
interactions between the gentleman and the public gaze in which the
individual's vision of himself depended entirely on his appearance to
others, Cilley's contemporaries insisted that the code of honor provided
146. See supra text accompanying notes 132-39 (listing mid-century duels between
northerners).
147. Congressman Preston Brooks's caning of Senator Charles Sumner stands as the most
extreme example of this equivalence. See supra note 129.
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no moral authority by which individuals' actions could be judged.
Moreover, as the North began to see itself as industrialized, marketdriven, and generally unlike the agrarian South, the idea of premodern,
elite honor as an organizing principle for society seemed less and less
appropriate. Growing numbers of northerners understood their lives as
segmented into the separate spheres 148 of the domestic and the
149
commercial, the home and the workplace, the private and the public.
Once this transformation had taken place, the practice of dueling seemed
absurd, a misguided attempt to monopolize public space for purely selfaggrandizing purposes-i.e., not unlike the modem view of the duel. 50
Having constructed this vision of society and persons as divided
between public and private realms, the nineteenth-century northerner
came to reject the code of honor as a relic of the antique gentleman who
viewed public life as the exclusive source of validation and personhood.
The code was inappropriate for a man of business who was also a man of
family, a man whose activities took place in the specific arenas of
nineteenth-century urban society but were ultimately governed by his
own moral core.
Even as it faded, however, the code of honor continued to figure
prominently in northerners' popular imagination, as the following
passage from a widely circulated 1833 etiquette manual makes clear:
Remember, that the honour which comes from God, the approbation of
Heaven, and of your own conscience, are infinitely more valuable than
all the esteem or applause of men....
Sell not your hopes of heavenly treasures, nor any thing that belongs to
your etemal interest, for any of the advantages of the present life:
148. See generally STEPHANIE COONTZ, THE SOCIAL ORIGINS OF PRIVATE LIFE: A HISTORY OF
AMERICAN FAMILIES 1600-1900 (1988); NANCY F. COTT, THE BONDS OF WOMANHOOD:
"WOMAN'S SPHERE" IN NEW ENGLAND, 1780-1835 (1977).
149. Kieman gives a particularly bleak characterization of this phenomenon: "On adults the
result of herd-living, combined with strict rules of behaviour, must be to dualize consciousness,
dividing it into two existences, public and private, outward and inward." KIERNAN, supra note 2, at
116.
150. Recall Walter Colton's comments:
And we are warranted in saying, that in many instances, the wound which the
complainant pretends has been inflicted upon his fair reputation, would never have been
so much as discovered by the public, but for a determination on the part of the person
affected, to make it an occasion of bringinghimself into public notice.
COLTON, supra note 45, at 15 (emphasis added); see also supra text accompanying notes 77-81
(discussing Colton's statements).
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2004)
"What 15shall it profit a man, to gain the whole world, and lose his own
soul?"
1
But not all northern treatments of dueling resembled this pious echo
of sermons by Dwight and Beecher. The end of an 1858 Harper's piece
on the Bladensburg dueling ground adopted an almost nostalgic tone that
contrasted sharply with the matter-of-factness of the rest of the article,
which recounted two famous Bladensburg encounters: "[T]he old
dueling ground is dismantled now, and its distinguishing features have
passed away... nothing now remains to indicate its former uses but the
sad traditions and melancholy memories that will forever cluster around
it.' 52 Although it might recede into memory, the practice of dueling
would remain fascinating to northerners-especially while it continued
in the South.
The South.
2.
Writing in 1884, Ben C. Truman captured the peculiar difficulties
of drawing conclusions about the decline of southern dueling:
Practically, public opinion firmly sustains the consolidated enactments
for the suppression of duelling in the United States; and, as an
institution, it may be said to have ceased to exist in our beloved
country,-notwithstanding the Cash-Shannon duel in South Carolina
in 1880, the Elam-Beime meeting in Virginia in 1883, and later the
remarkable encounter in Louisiana between a soda-water seller and a
catfish dealer of New Orleans, which was fought with rapiers and
minutes before either of the combatants drew
lasted 15eighty-three
3
blood.
As this quotation demonstrates, dueling endured in the South long
after the Civil War, the traditional terminal point given for the code of
151.
THE AMERICAN CHESTERFIELD 228-29 (Philadelphia, John Grigg 1833) (quoting Matthew
16:26: "For what is a man profited, if he shall gain the whole world, and lose his own soul?").
152. The BladensburgDueling Ground,supranote 68, at 481. The first paragraphs of the piece
sounded slightly more sinister:
Apart from its wildness, however, there was nothing about the place to attract the
attention of the traveler; and unless it had been specially pointed out to him by some one
acquainted with its history, he would, in all likelihood, have passed it wholly
unobserved. But yet that dark-looking jungle, apparently so void of interest, is a locality
known all over America. It is the celebrated BLADENSBURG DUELING GROUND.
Id. at 472.
153.
TRUMAN, supra note 2, at 86.
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honor. 154 According to Truman's report, the last fatal duel in the United
States was between Colonel William M. Shannon and Colonel E.B.C.
Cash in Darlington County, South Carolina on July 6, 1880; however, he
noted that several other meetings had taken place since that date.155
Other accounts detail southerners meeting on the field as late as 1889.156
Clearly, southerners had a profound attachment to dueling, one that
kept the practice alive well past its mid-century northern demise. While
not every white southern man subscribed wholeheartedly to the code of
honor, 157 the tenacity with which the duel survived the Civil War and
Reconstruction suggests a special relationship between the South and the
code duello. Yet the duel that endured in the South after mid-century to
fuel the myth of noble Cavalier and courtly tournament bore little
resemblance to its then-deceased northern cousin. To be sure, the
language of challenge and satisfaction remained unchanged, as did the
procedural forms and all the other trappings. New, however, was a
notion of the duel as a particularly southern practice, another institution
peculiar from the perspective of those outside its scope but natural and
necessary to those on the inside. As they watched the North transform
itself into an urban, industrialized, and (they felt) machinelike society
frightening in its willingness to shed the traditions of the code of honor
and to attack those who embraced it, southerners marshaled their
defenses by laying claim to and accentuating that which made them
different, asserting that they had chosen their difference rather than
58
having it thrust upon them.
In keeping with this project of deliberately "otherizing" themselves,
southerners clung to the very elements of American society that had
made the early Republic fecund soil for the cultivation of the code of
honor: an agrarian economy; a dearth of large cities; an insistence on
hierarchy; and, most importantly, an emphasis on gentlemanliness. In
their drive to distinguish themselves from the growing numbers of
northern critics, antebellum southerners deliberately shunned the
154. See, e.g., KIERNAN, supra note 3, at 313-14 ("After the defeat of the south duelling
withered away even there.").
155. See TRUMAN, supra note 2, at 391.
156. See Webb, supra note 5, at 83-84 (describing the duel between J.R. Williamson and
Patrick Calhoun in Cedar Bluff, Alabama).
157. Truman notes that "two of the most eminent crusaders against the evil were Charles
Cotesworth Pinckney and Robert Bamwell Rhet, of South Carolina." TRUMAN, supranote 2, at 78.
158. Numerous scholars have explored the self-consciousness with which southerners of the
mid- 19th century set about creating a particular regional identity for themselves. For three seminal
accounts of this process, see DREW GILPIN FAUST, THE CREATION OF CONFEDERATE NATIONALISM:
IDEOLOGY AND IDENTITY IN THE CIVIL WAR SOUTH (1988); JOHN MCCARDELL, THE IDEA OF A
SOUTHERN NATION (1979); DAVID M. POTTER, THE IMPENDING CRISIS, 1848-1861 (1976).
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changes that recent decades had wrought to northern society. In so
doing, they ensured the survival of the duel (albeit only for a limited
time), for southerners' rejection of northern-style commercialism
necessarily included a rejection of the attendant emphasis on dignity and
character as opposed to honor and reputation. The southern gentleman
disdained the northern merchant and his need to subordinate his own
honor to such things as the market. By explicitly basing the honor of his
region on the duel, however, the southerner placed too much pressure on
that fragile practice for it to flourish as more than a contrived display of
sectional bravado.
While this description of the mid-century southern viewpoint may
seem extreme, that is precisely the point. As the rumblings of sectional
discord mounted, the South came to see itself as a kind of repository of
traditional ways of life and conservative values with an almost messianic
mission of redeeming the Republic from the clutches of godless northern
mercantilism. 159 Seizing on the duel as a visceral emblem of an imagined
golden age, advocates of southern exceptionalism viewed the decline of
dueling in the North as a sign of a larger decline in morality above the
Mason-Dixon line. Consequently, southerners received attacks on the
practice of dueling with almost masochistic glee, treating them as
evidence of the inferiority of northern culture. In his Code of Honor,
South Carolinian John Lyde Wilson derided a northern periodical for
depicting the duel as a sign of southern barbarism: "I am very sure, that
the citizens of the States so disrespectfully spoken of, would feel a deep
humiliation, to be compelled to exchange their urbanity of deportment,
for the uncouth incivility of the people of Massachusetts. 160
Criticism from without simply reaffirmed burgeoning southern
nationalism, fueling both regions' belief in fundamental and
insurmountable North-South difference. Indeed, the southern strategy of
embracing regional distinctiveness proved so effective that "duel"
became synonymous with "southern," as an 1847 magazine article titled
"Duelling in America" demonstrated when, after a generic program of
"[t]rac[ing] the history of a duel" from challenge to encounter, it
suddenly declared, "The reader has, in the details given, more or less
159. See, e.g., FAUST, supra note 158, at 13 (quoting the Nov. 13, 1861 Daily Richmond
Enquirer: "There is nothing whatever in this movement of a revolutionary, radical or Red
Republican character. It is the natural, necessary protest and revolt of, not a class or order, but an
ancient and glorious nation, against that crushing, killing union with another nationality and form of
society.") (internal quotation marks omitted).
160. WILSON, supra note 34, at 36. And yet Wilson also insisted, "I would not wish to be
understood to say, that I do not desire to see duelling to cease to exist entirely, in society." Id. at 8.
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true of all southern duelling-a picture of the course which honorable
men pursue in endeavoring to slay each other!' ', 61 A testament to the
success of the southern desire to claim exclusive possession of the duel,
such statements find their modem-day reflection in our willingness to
believe in the duel as an organic outgrowth of southern society rather
than as a self-conscious, highly symbolic component of the South's selfconception.
This is not to suggest that southerners fully comprehended what
they were doing as they insisted on the centrality of the duel to southern
culture. On the contrary, they appear to have fully internalized their own
system, playing the role of Dueling Southerner even among themselves.
In a famous 1845 duel between Congressman William Lowndes Yancey
of Alabama and Congressman Thomas Lanier Clingman of North
Carolina, the dispute centered on Yancey's accusation that Clingman
was a traitor to the South because Clingman opposed the admission of
Texas, a slave state, to the Union.' 62 After the trip from Washington to
Maryland ended in a harmless exchange of shots and settlement by the
seconds, Yancey defended himself against the criticism of his fellow
southerners by appealing to shared regional identity. "I was a Southern
representative who in defending Southern rights, and the honor of the
whole Southern delegation, was called into account," he wrote in a
widely printed statement. 63 Yancey's explanation illustrated the new
essentiality that the term "southerner" had achieved. Like his
predecessor, the early-nineteenth-century northern or southern
gentleman-who-dueled, Yancey conceived of himself as a southerner
above all else. In his view, the rest of his endeavors were nothing more
than modifiers of this fundamental quality of being; consequently, he
could appropriately cite this quality as the motivating factor behind his
challenge to Clingman. The term "southerner" presumed the suffix
"-who-duels."
But Yancey and his cohort protested too much. If, as they claimed,
their presence on the field of honor was nothing more than a
manifestation of their core southemness, why had any northerner ever
issued a challenge? Why had it become necessary to justify dueling by
reference to one's geographical origin rather than one's innate sense of
morality and gentlemanly self-worth? Why did a supposedly organic set
of norms suddenly in 1858 require widespread promulgation and
161. Duelling in America, supra note 47, at 469-70.
162. See BRUCE, supra note 3, at 21-26.
163.
Id. at 26 (internal quotation marks omitted).
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anxious justification in the form of an actual printed code, albeit with
canny references to the codifier's role as a mere transcriber of Hibernian
heritage rather than as a genuine author?
The southern species of duel resembled only slightly the species
that had driven Alexander Hamilton and Jonathan Cilley to early graves.
Its genius was its ability to pass as the latest incarnation of that species;
its demise lay in the self-consciousness with which Hamilton's and
Cilley's southern successors went about following its rules while
scanning their audience to make sure their obedience was noticed.
Constructed to serve the specific historical context of antebellum
America, the southern code of honor expired because it was artificial,
because it was overdetermined, and-most importantly-because it was
too invested with meaning by its contemporaries. As had happened in
the North decades before, dueling dwindled in the South after
Reconstruction because southern society was no longer hospitable to it.
The code of honor ultimately failed the South because the South relied
too heavily on it, constituting itself as a region around a stylized ritual
lacking any organic social function. Instead of a restatement of the
public norms that governed social interaction, the duel had become a
discrete code, a script to be performed as a demonstration of nationality.
In short, antebellum southerners were altogether too aware of the
meaning of the duel for it to remain viable on its own terms. Southerners
could exploit the duel for its symbolic content precisely because it had
ceased to function as an organic social institution and instead was
available to be freighted with cultural significance. Faced with what they
perceived as an increasingly unfathomable North of commerce and
modernization, southerners cobbled together a regional identity based on
a reified notion of honor, an all-encompassing and opaque characteristic
that was said to be constitutive of southernness. 164 And for the most part,
they succeeded, creating a self-conscious image of essential
southernness that has endured to the present day. What was a
southerner? A gentleman with a refined and highly cultivated sense of
honor. How did he demonstrate this honor to the world? By demanding
satisfaction for insult on the field of honor-by arrogating to himself
164. Sabine seems to have believed in honor-in all areas of life, both private and public-as a
defining mark of the southerner:
We of the North denounce individual gentlemen, who meet one another to adjust their
personal or political differences, in terms measured only by our respective powers of
anathema, and we do wrong; for we forget that, if a gentleman at the South refuses to
send or accept a challenge, he loses his position in society, and is sometimes shunned
and hunted down.
SABINE, supra note 2, at 44 (emphasis added).
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what northerners saw as the public space according to the dictates of a
manual that was more proto-nationalist, manifesto than restatement of
norms. Why was it important to show that he was a southerner? Because
the mounting political tempest demanded self-identification based on
certain sectional stereotypes. Did he actually possess some essential
quality called honor, or did he merely hold himself out to the world as
possessing this quality? It did not matter, for even if he was engaged in
mere performance, he believed in his role so much that he came to
define himself by the reactions he apprehended in his audience.
III.
THE DUEL AND THE LAW, THE DUEL IN THE LAW
In addition to insisting that the duel represented a regionally
specific species of honor, elite antebellum southerners viewed
themselves as standing in a fundamentally different relation to the law
from that of their northern cousins. 165 This was the case despite the fact
that dueling was typically illegal whenever and wherever it occurred.
For as long as dueling endured in each region, its practitioners shared166
a
belief that the code of honor trumped mere statutes and common law.
This belief became more entrenched in the South as sectional
antagonism increased and dueling came to seem an integral element of
southern identity. Moreover, as the practice continued in the South,
northerners-in keeping with their developing notion of the divide
between public and private spheres-attempted to employ the legal
system to redress certain kinds of heretofore challengeable insults.
Consequently, the duel related to the law both as a subject of legal
regulation and as a precursor to legal causes of action.
A.
The Law ofDueling.
Nineteenth-century restrictions on dueling present a complex
picture of public outcry, legislative reaction, selective (or non-)
enforcement, and creative interpretations of the elements of criminal
offenses. As a 1927 commentator observed, "In the case of duelling, as
in the modern instance of prohibition, we have a striking illustration of
165. See Charles S.Sydnor, The Southerner and the Laws, 6 J. S.,HIST. 3, 13 (1940) ("[T]he
planter simply went through life under the assumption that a relatively large number of his deeds
had to be performed out past the margin of written law in what might be called a state of nature.").
166. See id. at 19 ("[1]n case of insult the code of honor required action; the state code enjoined
submission. Here was a conflict of law. Therefore, the individual had to decide which body of law
applied to the case, and if he decided in favor of the code of honor he was simply transferring the
case from state jurisdiction to the jurisdiction of the unwritten code.").
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conflict between social convention and the law of the land., 167 Certainly
the statute books of most states contained anti-dueling provisions by
mid-century, 16 but this does not necessarily demonstrate opposition to
dueling any more than a paucity of actual prosecutions proves that few
duels took place. Always fraught with danger, extrapolation from case
law and statutory provisions to social attitudes about a given activity
presents special hazards when the most frequent participants in that
activity were the very persons who decided the cases and proposed the
statutes.
So what do we know about the law of dueling? While we do not
know whether anti-dueling laws were more stringently enforced in the
North than in the South, we can comfortably say that nineteenth-century
Americans believed this to be the case, and that this belief both stemmed
from and fed into a willingness to accept the duel as particularly
southern after mid-century. Widely viewed as more law-obsessed and
statute-bound than southerners, northerners seemed eminently reluctant
to countenance bloody affrays. Thus developed the standard story of
northern authorities standing firm against dueling while their southern
counterparts not only
failed to prosecute duelists but met on the field of
1 69
honor themselves.
To be sure, periodic crackdowns on dueling followed particularly
scandalous meetings on the field of honor, such as the Burr-Hamilton
and Cilley-Graves affairs, especially in the locales that had served as the
sites of the initial insult. Only after the death of Cilley in 1838 did
167. Greene, supra note 12, at 368.
168. Indeed, even strongholds of the code of honor such as Virginia and Mississippi had strict
anti-dueling statutes on the books by the 1830s. In 1868, Steinmetz described the Virginia
legislature's "ingenious" approach:
They laid it down as a maxim, that, when in frivolous matters, or in differences of
opinion, which the law tolerates and even authorizes, a man is induced to expose himself
to death or to slay another, he is actually demented, and that, therefore, all principals and
seconds in a duel should be considered laboring under an alienation of mind, and
deprived of any public station that they might hold; that their property, moreover, should
be vested in the hands of trustees, and, in fact, be considered as under an interdiction.
After that.. . ,we are told that duels in the State of Virginia have been rarely heard of.
STEINMETZ, supra note 2, at 299-300. Mississippi apparently took a less creative route, requiring
the survivor of a fatal duel to pay his victim's debts. See id. at 299. Steinmetz tempered these
sprightly observations with the following bleak remark: "But then, all enactments against duelling
in the States may be easily rendered a dead letter or inoperative." Id. at 300.
169. See, e.g., STEVENS, supra note 5, at 48 ("While the Southern police, judges, and juries
wholly sympathized with the code of honor, those in New York were determined to enforce the law
whenever possible."); TRUMAN, supra note 2, at 78 ("It is a noteworthy fact, however, that the laws
against the tyrannical custom have always been more vigorous and restraining in the Northern
States than in the Southern.").
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Congress finally pass a law prohibiting the sending and accepting of
challenges in the District of Columbia.1 70 Farther afield, the
Massachusetts legislature issued a Report and Resolves on the Subject of
Duelling, in which it exhorted the state's senators and representatives in
the passage of a
Washington to "use all reasonable exertions to procure
'1 71
law by Congress, for the suppression of duelling."
But a scant four years after Cilley and Graves exchanged fire, New
York's first prosecution for dueling-of editor James Watson Webb, the
instigator of Graves's challenge to Cilley-turned into empty mummery
when fourteen thousand New Yorkers presented a petition to Governor
William H. Seward requesting Webb's pardon. 172 Although Webb's
latest enormity, a duel with Kentucky congressman Thomas F. Marshall,
had ended without serious injury to either party, Webb had been tried
and convicted upon his return from the dueling ground in Delaware for
the offense of leaving New York in order to fight a duel. Immediately
after Webb received his two-year prison sentence (the statutory
minimum), Seward issued the pardon on the condition that as long as
Webb remained a citizen of New York, he could not violate state antiabet any duelists, or publish any defenses of dueling
dueling laws, aid1or
73
newspaper.
his
in
The Webb case illustrates state authorities' reluctance to hold even
notorious duelists accountable for their illegal activities. Furthermore,
commentators as early as Blackstone had noted the difficulties of
enforcing anti-dueling laws:
[T]he strongest prohibitions and penalties of the law will never be
entirely effective to eradicate this unhappy custom; till a method be
170. See BALDICK, supra note 5, at 117; see also CHARLESTON COURIER, Mar. 5, 1838 ("Mr.
Prentiss gave notice that he should on to-morrow introduce a, bill for the suppression of duelling in
the District of Columbia.").
171. COMMONWEALTH OF MASSACHUSETTS, REPORT AND RESOLVES ON THE SUBJECT OF
DUELLING, H. 59 (1838). The report noted that previous attempts to enforce anti-dueling provisions
had come to naught because of individuals' resistance to the laws:
Ordinary legislation could do little more than has already been done by many, if not
most of the states, to restrain the practice of duelling. The difficulty in punishing this
offence, has been a reluctance on the part of the public, to prosecute and convict the
offender, rather than any defect in the law itself.
Id. at 7.
172. See SEITZ, supra note 67, at 306.
173. See id. The New York Herald,rival to Webb's Courierand Enquirer,had mocked Webb's
situation as he awaited his sentence in New York's Tombs Prison, comparing him to a prizefighter
named Lilley who was facing manslaughter charges after his opponent McCoy had dropped dead in
the ring after 119 rounds. Unlike Webb, Lilley and his associates, known by the colorful appellation
of the "prize-ring gang," did not receive a pardon after they were convicted of fourth-degree
manslaughter. Id. at 304-08.
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found of compelling the aggressor to make some other satisfaction to
the affronted party, which the world shall esteem equally reputable as
that which is now given at the hazard of the life and fortune,74 as well as
of the person insulted, as of him who hath given the insult.1
The ambivalence with which nineteenth-century courts and
legislatures regarded dueling stemmed from a belief that disputes
concerning affronts to reputation were fundamentally different from the
types of disputes that were appropriately settled in court. If the legal
system provided no redress for insults to a gentleman's honor, the logic
ran, and a gentleman's honor was a vital part of the equipment with
which he engaged the world, then some other avenue of satisfaction was
necessary. The extralegality (not to say illegality) of the code of honor
was therefore crucial to the code's success, for it allowed the code's
followers to style it as a legitimate, parallel rule system that dealt with
the extralegal right of a gentleman to defend his honor.
Indeed, duelists frequently embraced the rhetoric of extralegality to
justify their activities. "How many cases are there, that might be
enumerated," demanded Wilson's Code of Honor, "where there is 17
no
5
tribunal to do justice to an oppressed and deeply wronged individual?
Wilson continued: "[I]n cases where the laws of the country give no
redress for injuries received, where public opinion not only authorizes,
but enjoins resistance, it is needless and a waste of time to denounce the
practice."'' 76 Earlier in the century, a British commentator had put the
case even more forcefully:
I have never known a man whose heart was in the right place bring an
action for damages against another for seducing a beloved wife, a
daughter, etc. For these and such like offences the law can make no
adequate retribution-insuch a state life is a burthen, which cannot be
laid down or supported, till death either terminates
his own existence
177
or that of the despoiler of his peace and honour.
174. Greene, supra note 12, at 369 (citing Blackstone's Commentaries).
175. WILSON, supra note 34, at 4.
176. Id. at 6. But opponents of dueling such as Lyman Beecher brooked none of this type of
justification: "The feelings for which the law makes no provision, are feelings for which it ought not
to provide." BEECHER, supra note 74, at 17.
177.
ABRAHAM BoSQuETr, THE YOUNG MAN OF HONOUR'S VADE-MECUM (London, 1817)
(quoted in BALDICK, supra note 5, at 32-33) (emphasis added; internal quotation marks omitted).
Andrew Jackson's mother instilled the same notion in her son's mind with her pronouncement that
"'[t]he law affords no remedy that can satisfy the feelings of a true man."' See AYERS, supra note 3,
at 18. The lesson apparently stuck with young Andrew. See supra text accompanying notes 61-62.
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Thus, duelists argued that the gravity of certain offenses placed
them beyond the purview of the legal system,
demanding a more visceral
178
retribution than courts could dole out.
Even when civil authorities determined that duelists ought to face
criminal sanctions, harshness in theory often transmitted into lenity in
practice. In his study of nineteenth-century British duels, Antony
Simpson argues that while "the substantive law of England was
unreservedly intolerant of dueling.., the law in these matters was never
strictly followed except in the most unusual circumstances." 179 Faced
with overwhelming evidence of premeditation, malice, and planning,
courts could not explicitly instruct juries to ignore the common law
definition of murder; they could, however, shift the inquiry to focus on
180
the fairness of the fight and the parties' adherence to the code duello.
Using this fairness test, a British judge in 1830 encouraged the jury to
acquit a Captain Smith and his second of the murder-by-duel of a Dublin
lawyer named O'Grady, opining that "'[T]he conduct of the prisoners
18
when in the field, was such as to leave no stain upon their character."' 1
The tractable jury acquitted Smith and
his comrade of murder,
8 2
convicting them of manslaughter instead.
Contemporary observers noted a similar tendency on the part of
American courts. Sabine had this to say:
In the United States, as in England, killing in a duel is murder; but
here, as there, OPINION is superior to LAW. Bennett, as far as I have
been able to ascertain, is the only person who has been executed for
taking the life of a fellow-man in single combat since we became a free
people. In some States, the parties have seldom been held even to
answer; in others, the inquiry in the courts has been confined to the
single question of the "fairness of the fight," and this point determined
183
in favor of the survivor, acquittal has followed as a matter of course.
"Bennett" was William Bennett, executed in Illinois in 1819 for
killing Alphonso Stewart after challenging him to a duel. Although this
178. See Fisher, supra note 25, at 1074 (noting "the reluctance of white [southern] men to
submit personal disputes to the courts for resolution"); Vandervelde, supra note 5, at 835 (noting
that devotees of the code of honor believed "that recourse to legal actions was neither manly nor
honorable").
179. Simpson, supra note 20, at 121.
180. See id. at 122.
181. Id. at 123.
182. See id. Simpson notes that juries occasionally nullified on their own despite pressure from
the bench to return murder convictions, suggesting that sympathy for duelists was not confined to
the judiciary. See id.
183. SABINE, supra note 2, at 43.
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melancholy fact was often bandied about as an example of northern
intolerance of dueling, the bizarre facts of the Bennett-Stewart encounter
suggest a different conclusion: that the severest legal penalties were
reserved for those who failed to comply with the fair fight rule. The
seconds intended for the affair to terminate in a mock duel and had
loaded the weapons with powder only, but Bennett had somehow
discovered their plan and loaded his gun with bullets as well after his
second handed it to him. 184 Unsurprisingly, Stewart was killed at the first
shot. Expressing outrage at this clear breach of the code of honor as well
as basic human decency,1 85the jury convicted Bennett of murder and
sentenced him to hanging.
In another famous collision between law and code, a jury in 1859
acquitted General Daniel E. Sickles of the murder-by-duel of Philip
Barton Key (son of Francis Scott Key) after Sickles claimed temporary
insanity. 186 Although the facts of the case were apparently clear-cut and
not totally indicative of temporary insanity, the jury determined that the
homicide was justifiable in that Key had been "paying attention to"
Sickles's young wife. 187 Because Sickles had abided by the rules of fair
play as contained in the code of honor, the jury absolved him of
wrongdoing.
Many commentators remarked upon the lawlessness of the code of
honor, 88 especially as the northern duel receded into memory and the
code became associated with the South and, increasingly, the Westespecially California. In 1884, Ben Truman felt qualified to state that
"between the years 1850 and 1860 more fatal encounters took place in
the Golden State than elsewhere in the Union during the same length of
time.' 89 Most famous and formalized of these was the 1859 meeting
184. See STEVENS, supra note 5, at 93.
185. See id.; see also SABINE, supra note 2, at 43.
186. See STEVENS, supra note 5, at 278. Stevens refers to this as the first American case in
which a murder defendant pleaded temporary insanity. See id.
187.
Id.
188. See, e.g., Thomas J. Keman, The Jurisprudenceof Lawlessness, 29 A.B.A. REP. 450, 452
(1906) (listing "Law V" of the "decalogue" ofjury-made lawlessness as the rule that "[t]he survivor
of a fatal duel must be acquitted, if the duel was fairly conducted according to the time-honored
provisions of the Code of Honor").
189. TRUMAN, supranote 2, at 78. Truman was particularly taken with the idea that the code of
honor had moved west to reincarnate itself as the cowboy gunfight:
[T]here still remains a duelling custom among a class of Americans known as the
"cowboys" of the West, which nothing but the overwhelming approach of civilization
and power of empire can effectually obliterate. The cowboy is ostensibly an owner or
herder of stock upon unpurchased or unpaid-for ranges of nutritious grasses in the
western part of the United States; but, in reality, he is a stealer of horses and cattle, a
guzzler of adulterated spirits, and a shooter of men; and it may be said of him, with
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between Judge David S. Terry and Senator David C. Broderick, which
centered on the parties' political aspirations and opposing stances on
slavery and resulted in the death of Broderick.'9" After the duel, which
took place in a ravine twelve miles outside of San Francisco, 91 Terry
was indicted for murder but acquitted at trial. The code of honor had
once again triumphed over mere law, but it proved a Pyrrhic victory for
Terry: "He continued to live in San Francisco and held his head high,
but
1 92
people viewed him much as New Yorkers had viewed Aaron Burr.
B. The Duel in the Law.
Observing the tenacity of the duel in the South and searching for a
parallel northern institution that adjudicated insults to honor, many
scholars have seized upon the legal actions of libel and slander as the
natural heirs to the duel.1 93 While the symmetry of this evolution is
appealing, it seems too neat, too difficult to substantiate. Yet it is also
difficult to disprove. Clearly, libel and slander law took up where the
duel left off in that they addressed the same basic need of the individual94
to avenge and vindicate himself against a verbal attacker.
Furthermore, the rise of libel and slander actions in the North fits neatly
with a vision of the North as essentially legalistic and bureaucratic, in
perfect truthfulness, that he fears neither God, man, nor devil. ....
His "code" is to
"always go well heeled andnever let an enemy get the drop on him."
Id. at 88-89.
190. STEINMETZ, supra note 2, at 314-16; Pistols From a Final Duel Are Sold for $34,500,
N.Y. TIMES, Nov. 26, 1998, at A35; see generally SEITZ, supra note 67, at 317-30.
191. See STEINMETZ, supra note 2, at 315. The ravine, at Lake Merced near the San FranciscoSan Mateo County line, is known to present-day San Franciscans as a golf course. See Pistols From
a FinalDuelAre Soldfor $34,500, supranote 190.
192. SEITZ, supra note 67, at 329-30. Terry became embroiled in scandal again after the duel
with Broderick: he was shot and killed in 1889 by the bodyguard of United States Supreme Court
Justice Stephen Field when he attacked Field after making threats against him, apparently over a
lawsuit. See id. at 330.
193. See, e.g., IRVING BRANT, THE BILL OF RIGHTS: ITS ORIGIN AND MEANING 502 (1965)
("Civil actions for slander and libel developed in early ages as a substitute for the duel and a
deterrent to murder."); INTERVIEW IN WEEHAWKEN, supra note 4, at 176-77 ("The change in
attitude [after the Civil War] may account in some small part for the increase in suits for libel and
slander during the late nineteenth century. An offended person now looked to his lawyer instead of
his pistol."); Lawrence M. Friedman, Dead Hands:Past and Present in CriminalJustice Policy, 27
CUMB. L. REV. 903, 917 (1997) ("Southerners fought duels, while Northerners sued each other.").
194. See Robert C. Post, The Social Foundations of Defamation Law: Reputation and the
Constitution, 74 CAL. L. REV. 691, 704-05 (1986) ("There is a clear analogy between the traditional
common law of criminal libel and the 'Code of Honor' under which gentlemen duelists sought to
'avenge insults' and thereby achieve 'the restoration of wounded honor.' As the old saw would have
it, 'The laundry of honor is only bleached with blood."').
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contrast to the more traditional, norm-based social organization of the
South.
But even if we could substantiate the claim that libel and slander
actions increased in frequency in the nineteenth century, marshal
evidence that more of the duelists were northerners, and then isolate the
nonavailability of the duel as the but-for cause of their decision to bring
a lawsuit, we would still lack the answer to one crucial question: were
they bringing the lawsuits to vindicate the same rights for which they
had sought redress on the field of honor? Or had libel and slander
emerged on the horizon as viable options precisely because the nature of
the underlying right had changed-because individuals no longer
conceived themselves to be vindicating the entire amorphous notion of
honor, but rather certain components of that heretofore undifferentiated
set of values?
These are largely unanswerable questions that defy explanation
based on the concise conclusions of nineteenth-century cases. Yet one
significant connection between the duel and the actions of libel and
slander does emerge from the shadows of the common law: the same
ambivalence toward the public-private divide that characterized the end
of dueling in the North endured in libel and slander, the legal modes of
satisfaction. Nineteenth-century case law suggests that courts hearing
defamation claims tacitly adopted the code of honor's emphasis on the
individual's external projection of himself-rather than the innercharacter focus of the moral courage vision-even as they held
themselves out as the antithesis of the standardless adjudication of the
releaguer. At the same time, however, the courts moved beyond the code
of honor's obsession with mere appearances to consider some insults in
light of their potential actually to effect the insulted individual in his
commercial capacity. The doctrine of libel and slander centered on
"reputation," but it was not the same reputation that had driven Hamilton
or even Cilley to the field. The courts' version acknowledged its limits
by dealing only with certain types of insult and by admitting that
reputation was a poor proxy for character.
In a seminal 1904 article on the history of defamation law, Van
Vechten Veeder set out the parameters of the doctrine as it had
developed through the nineteenth century. 195 Building on the common
195. Veeder, supra note 6, at 33.
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law idea that "reputation is regarded as a species of property,'
defined reputation in the following way:
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96
Veeder
It is to be observed that it is reputation, not character, which the law
aims to protect. Character is what a person really is; reputation is what
he seems to be. One is composed of the sum of the principles and
motives-be they known or unknown-which govern his conduct. The
of observation of his conduct-the character imputed
other is the result197
to him by others.
Character as the "being," reputation as the all-important "seeming":
Veeder's typology described a legal system that had all but revived the
code of honor, with its insistence that society ought to deal with insult
based upon the assumption that individuals' identities were constituted
of and by public display-that is, by "the character imputed to [them] by
others." Abandoning the Beecher-Dwight-Colton belief in the primacy
of private morality, defamation law regressed toward treating the
individual as nothing more than a collection of others' reflected
opinions. Moreover, the law even adopted the code of honor's own term
for this societal assemblage: "reputation."
But the path from the code of honor to the cause of action for
defamation was not as direct as these similarities would suggest. An
insult to reputation alone did not suffice to make a case for libel or
slander; in addition, the aggrieved party was required to show that the
insult fell within one of four general categories of actionable defamation
as enunciated by Veeder: words that caused "special damage" based on a
pecuniary test; 198 words that imputed an indictable offense;1 99 words that
injured the
imputed certain contagious disorders; 200 and words that
201
plaintiff in his "profession, trade, or means of livelihood.,
Interestingly, each of these categories dealt with a particular
manifestation of that property known as reputation, rather than treating
an insult to reputation per se as an actionable offense. "The one thing
that is clear is that the right to reputation seems to have been completely
196.
GEORGE SPENCER BOWER, A CODE OF THE LAW OF ACTIONABLE DEFAMATION 275-78
(1908).
197. Veeder, supra note 6, at 33.
198. Id. at 50.
199. See id.
at 49.
200. See id.
201. Id. at 50; see also 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 13 (DaCapo Press
1971) (1827) ("The injury consists in falsely and maliciously charging another with the commission
of some public offence, or the breach of some public trust, or with any matter in relation to his
particular trade or vocation, and which, if true, would render him unworthy of employment ....).
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lost sight of," Veeder proclaimed.2 °2 Instead of offering legal redress for
attacks on honor and reputation in their pure forms, the doctrine as it had
grown up required that the harmful words interfere with the relation
between these qualities and the civic or commercial world in which they
were expressed. In so doing, the law followed a middle course between
the code of honor's view of individual identity as wholly dependent on
public opinion (defined from the outside in) and the critics' view of
individual identity as wholly dependent on personal morality (defined
from the inside out). Northerners' belief in the essentiality of character
prevented them from returning to an entirely appearance-based system
of assessing an insult's effect, but their awareness of the impossibility of
scrutinizing character led them to adopt damage to reputation as a metric
of injury.
Unwilling to cede the public space of the courtroom, as it once had
the public space of the dueling ground, to an injured party's desire to
display a personal wound to the world, nineteenth-century American
common law developed the requirement of injury to a narrowly defined
type of reputation. In so doing, courts sent a clear message that they
would traffic only in injuries they could do something about: damage to
an individual as a commercial actor. In Veeder's words, "The law
classes broken hearts and blasted hopes with wounded vanity and soured
tempers, and protests that it cannot deal with such sentimental
considerations., 20 3 With this as its mission, nineteenth-century doctrine
set about parsing the elements of harm to the individual's public identity.
Rather unsurprisingly, the majority of the litigation focused on the action
for injury to "profession, trade, or means of livelihood," for the
boundary between cause and lack of cause here went to the heart of the
northern narratives of commerce and modernization. In essence,
defamation law set itself the twin tasks of defining and policing the line
between public and private insult.
Thus ensued a line of cases throughout the North at once frustrating
and almost comical in their sedulous efforts to tease out a principled
definition of an insult to professional or trade capacity and their dogged
belief that such a definition existed.20 4 British jurist Thomas Starkie
appreciated the difficulty of this exercise:
202. Veeder, supra note 6, at 48.
203. Id. at 51.
204. 1 have focused on New York cases for the sake of doctrinal coherence. See, e.g., Fry v.
Bennett, 28 N.Y. 324 (1863) (stating that a publication that injures a plaintiff in his business, if false
and malicious, commits an actionable libel); Kinney v. Nash, 3 N.Y. 177, 178 (1849) (stating that
"words not actionable in themselves, are not actionable when spoken of one in an office, profession
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Words imputing dishonesty to a tradesman, it seems, are not
actionable, unless spoken with reference to trade. So that to call a
tradesman a cheat, generally, has been held not actionable. But
otherwise to say, "He keeps false books;" for the words evidently
relate to his course of trading.... It may, however, be doubted,
whether there is any solid distinction between these cases, since every
tradesman's livelihood depends in some measure upon his general
character for honesty and integrity; and it is difficult to suppose, that a
general imputation of dishonesty, if believed, would not operate to his
prejudice.
Above all, courts sought a means of distinguishing insults to a
party's private self from insults to a party's expression of that self in the
public realm of the market. Northerners' conflicted feelings toward the
duel had allowed them to decry it as both too focused on the personal (in
the form of the empty performance of individual vanity that Colton had
condemned 20 6) and as not focused enough on the personal (in the form of
the internal character idea that Beecher and others had advocated 20 7).
The law attempted to achieve a compromise between these views in the
following two ways: (1) by defining a certain class of insults as simply
too personal to admit of legal remedy, thereby avoiding the waste of
judicial resources on disputes better left unscanned by the civic eye; and
(2) by creating a truth exception to the right of reputation,20 8 thereby
establishing a special rule for situations in which outer reputation
actually mirrored inner character.
With boundless Victorian faith in the classifiability of all elements
of human experience (and in their own ability to set up the initial
classification scheme), nineteenth-century courts determined that the
or trade, unless they touch him in his [professionalor trade]."); Demarest v. Haring, 6 Cow. 76, 85
(N.Y. Sup. Ct. 1826) ("The court cannot but see that a charge of incontinency would affect a
clergyman in his professional though it would not have that effect when made against an ordinary
person."); Van Tassel v. Capron, 1 Denio 250, 253 (N.Y. Sup. Ct. 1845) ("Saying that 'there is a
combined company here to cheat strangers, and 'Squire Van Tassel has a hand in it,' does not
impute this misconduct to him as a magistrate; but only as a man."); Ireland v. McGarvish, 1 Sand.
Ch. 155, 157 (N.Y. Ch. 1847) ("But to say of a man, 'I am afraid to go to his house alone.' 'He is a
desperate man.' 'He is a dangerous man.' 'I am afraid of my life;' is no more calculated, directly to
affect his business as keeper of a house of entertainment, than to prejudice his business as a
merchant, a baker, or a blacksmith.").
205.
THOMAS STARKIE, LAW OF SLANDER, LIBEL, SCANDALUM MAGNATUM, AND FALSE
RUMOURS 79-80 (Fred B. Rothman & Co. 1997) (1832).
206. See supra text accompanying notes 77-81.
207. See supra text accompanying notes 74-76.
208. See Veeder, supra note 6, at 33 ("In most cases reputation reflects actual character....
Since the right is only to respect so far as it is well founded, it is obviously not infringed by a
truthful imputation.").
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proper test of an insult's effect on a party's public, market-participating
self was the degree to which the insult described an act done rather than
an inchoate tendency or other intrinsic quality. 20 9 Based on a Lockean
notion of reputation as "something that a person can earn through 'the
2 10
exertion of talent' or the exercise of 'mechanical skill and ingenuity',
and "'the fruit of personal exertion,,, 211 the emerging libel and slander
doctrine effected a shift from the code of honor's notions of the
relationship between the individual and society, for it defined reputation
as the result of individual action rather than societal judgment. Thus, the
late-nineteenth-century American legal system refused to construe
reputation as the heir of externally defined honor, instead according the
individual much greater latitude and agency in constructing his own
projection of himself into the world. Reputation spoke of the
businessman himself, while honor spoke only of the shadow that the
duelist cast onto his society.
IV.
CONCLUSION
The duel was a carefully constructed spectacle in which individuals
claiming the status of gentlemen presented themselves before the public
eye to stake their lives on the merit of their claims. In order to function
as a viable method of dispute resolution, the duel required a society that
permitted gentlemen to appropriate public space for settling their
quarrels with one another. Less benignly, the duel allowed foppish, elite
men to engage in absurd shows of bravado that were intended to prove
membership in the club of gentlemen but that merely exposed
themselves and their petty punctilios to the public gaze.
Regardless how charitably one views the duelist, one aspect of his
motivation remains constant: his desire consciously to choose a single
course of action to serve as the basis for society's judgment of him.
Believing the code of honor's fiction that his inner being was defined by
and secondary to his public display on the releaguer, the duelist both
posited and proved his gentlemanliness by setting foot on the field. His
display of himself on the field required that he empty himself of any
209. See, e.g., Walton v. Singleton, 7 Serg. & Rawle 451 (Pa. 1821) ("But to say of one he is a
whoring fellow, is a charge of whoredom. The distinction is between words merely adjective, as
thievish, and participles as thieving; the latter are actionable, because they import an act done; the
former are not, because they import only an intention.")
210. Post, supra note 194, at 694 (quoting STARKIE,supra note 205, at xx).
211. Id. (quoting J. HAWES, LECTURES ADDRESSED TO THE YOUNG MEN OF HARTFORD AND
NEW HAVEN 95 (Hartford 1828)).
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[Vol. 33:501
ethic save that of honor, for the all-encompassing title of gentleman
would provide him with a code equally applicable to all realms of life.
In their drive to redefine the meaning of "gentleman," critics of the
code of honor also viewed the duel as the defining moment of an
individual's life. Moreover, they appreciated the duelist's willingness to
throw himself on the mercy and judgment of his society. But where the
duelist claimed noble valor, they saw selfish vanity; where the duelist
claimed compulsion and necessity, they saw frailty and self-murder.
Imploring the duelist to abandon the quest to throw the correct shadow
onto the screen of his society and back onto himself, opponents of
dueling such as Beecher, Dwight, and Colton attempted to invert the
dynamic of honor so that the right to call oneself a gentleman would
derive from internal character rather than external reputation, from virtue
rather than its hollow reflection.
Thus, dueling's opponents sought both to infuse the definition of
"gentleman" with a stronger dose of private morality and to excise from
it much of the basely personal craving for external validation. In so
doing, they found themselves in the delicate position of demanding a
finer moral intuition from a class that cited its adherence to the code of
honor as evidence of its nice moral sensibility. Yet "intuition" was the
language of character, while "sensibility" was the language of
reputation. As an added complication, by mid-century the North had
adopted the language of character, while the South clung to its emphasis
on reputation as a badge of distinctively southern honor.
The Cilley-Graves duel stemmed from a similar inability to agree
on fundamental terminology, for dueling tyro Cilley's repeated
statements that he had not implied that Webb was not a gentleman
invited a challenge, according to the code of honor. For Cilley the New
Englander, the word "gentleman" simply did not carry the judgmental
charge that it did for Webb and Graves. As this fundamental NorthSouth disagreement about specific definitions of the words of honor
grew more accentuated, the duel became one of the few remaining sites
of barely containable but still socially acceptable sectional dispute. The
Cilley-Graves encounter demonstrated that by mid-century, both North
and South viewed the code of honor--despite its emphasis on individual
reputation-as a vital means of uttering a political statement about
regional character.
The tension between reputation and character was mirrored in
nineteenth-century law. The common law causes of action for libel and
slander recognized injury to reputation in the marketplace but not to
character as a gentleman. Public redress was therefore available only for
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569
certain types of insults affecting certain special realms of human
activity. The code of honor's insistence that gentlemen's lives unfolded
entirely within the public realm thus gave way to a new vision of elite
white men conducting business affairs in public while living the rest of
their lives in private.
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